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Standard Contractual Clauses

 

Standard Contractual Clauses (Controller to Processors)

The data exporter and the data importer, as defined under the Akeero Data Processing Addendum, or any other agreement or addendum effectively governing the processing of personal data by the data importer on behalf of the data exporter, including all annexes, exhibits and  appendices thereto (“DPA”), each a “party“; together the “parties“, have agreed on the following  Contractual Clauses (“Clauses“) in order to adduce adequate safeguards with respect to the  protection of privacy and fundamental rights and freedoms of individuals for the transfer by the  data exporter to the data importer of the personal data specified in Appendix 1.

 

Clause 1 – Definitions

For the purposes of the Clauses:

 

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’,  ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive  95/46/EC of the European Parliament and of the Council of 24 October 1995 on the  protection of individuals with regard to the processing of personal data and on the free  movement of such data;

 

(b) ‘the data exporter’ means the controller who transfers the personal data;

 

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter  personal data intended for processing on his behalf after the transfer in accordance with  his instructions and the terms of the Clauses and who is not subject to a third country’s  system ensuring adequate protection within the meaning of Article 25(1) of  Directive 95/46/EC;

 

(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other  subprocessor of the data importer who agrees to receive from the data importer or from  any other subprocessor of the data importer personal data exclusively intended for  processing activities to be carried out on behalf of the data exporter after the transfer in  accordance with his instructions, the terms of the Clauses and the terms of the written  subcontract;

 

(e) ‘the applicable data protection law‘ means the legislation protecting the fundamental rights  and freedoms of individuals and, in particular, their right to privacy with respect to the  processing of personal data applicable to a data controller in the Member State in which  the data exporter is established;

 

(f) ‘technical and organisational security measures’ means those measures aimed at  protecting personal data against accidental or unlawful destruction or accidental loss,  alteration, unauthorised disclosure or access, in particular where the processing involves  the transmission of data over a network, and against all other unlawful forms of  processing.

 

Clause 2 – Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable  are specified in Appendix 1 which forms an integral part of the Clauses.

 

Clause 3 – Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i),  Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses  9 to 12 as third-party beneficiary. 

 

  1. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e)  and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data  exporter has factually disappeared or has ceased to exist in law unless any successor entity  has assumed the entire legal obligations of the data exporter by contract or by operation of  law, as a result of which it takes on the rights and obligations of the data exporter, in which  case the data subject can enforce them against such entity. 

 

  1. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e)  and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the  data exporter and the data importer have factually disappeared or ceased to exist in law or  have become insolvent, unless any successor entity has assumed the entire legal  obligations of the data exporter by contract or by operation of law as a result of which it  takes on the rights and obligations of the data exporter, in which case the data subject can  enforce them against such entity. Such third-party liability of the subprocessor shall be  limited to its own processing operations under the Clauses. 

 

  1. The parties do not object to a data subject being represented by an association or other  body if the data subject so expressly wishes and if permitted by national law. 

 

Clause 4 – Obligations of the data exporter

The data exporter agrees and warrants: 

 

(a) that the processing, including the transfer itself, of the personal data has been and will  continue to be carried out in accordance with the relevant provisions of the applicable data  protection law (and, where applicable, has been notified to the relevant authorities of the  Member State where the data exporter is established) and does not violate the relevant  provisions of that State;

 

(b) that it has instructed and throughout the duration of the personal data processing  services will instruct the data importer to process the personal data transferred only on  the data exporter’s behalf and in accordance with the applicable data protection law and  the Clauses;

 

(c) that the data importer will provide sufficient guarantees in respect of the technical and  organisational security measures specified in Appendix 2 to this contract;

 

(d) that after assessment of the requirements of the applicable data protection law, the  security measures are appropriate to protect personal data against accidental or unlawful  destruction or accidental loss, alteration, unauthorised disclosure or access, in particular  where the processing involves the transmission of data over a network, and against all other  unlawful forms of processing, and that these measures ensure a level of security  appropriate to the risks presented by the processing and the nature of the data to be  protected having regard to the state of the art and the cost of their implementation;

 

(e) that it will ensure compliance with the security measures;

 

(f) that, if the transfer involves special categories of data, the data subject has been informed  or will be informed before, or as soon as possible after, the transfer that its data could be  transmitted to a third country not providing adequate protection within the meaning of  Directive 95/46/EC;

 

(g) to forward any notification received from the data importer or any subprocessor pursuant  to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data  exporter decides to continue the transfer or to lift the suspension;

 

(h) to make available to the data subjects upon request a copy of the Clauses, with the  exception of Appendix 2, and a summary description of the security measures, as well  as a copy of any contract for subprocessing services which has to be made in  accordance with the Clauses, unless the Clauses or the contract contain commercial  information, in which case it may remove such commercial information;

 

(i) that, in the event of subprocessing, the processing activity is carried out in accordance  with Clause 11 by a subprocessor providing at least the same level of protection for the  personal data and the rights of data subject as the data importer under the Clauses; and

 

(j) that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5 – Obligations of the data importer

The data importer agrees and warrants:

 

(a) to process the personal data only on behalf of the data exporter and in compliance with its  instructions and the Clauses; if it cannot provide such compliance for whatever reasons,  it agrees to inform promptly the data exporter of its inability to comply, in which case the  data exporter is entitled to suspend the transfer of data and/or terminate the contract;

 

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling  the instructions received from the data exporter and its obligations under the contract and  that in the event of a change in this legislation which is likely to have a substantial adverse  effect on the warranties and obligations provided by the Clauses, it will promptly notify the  change to the data exporter as soon as it is aware, in which case the data exporter is  entitled to suspend the transfer of data and/or terminate the contract;

 

(c) that it has implemented the technical and organisational security measures specified in  Appendix 2 before processing the personal data transferred;

 

(d) that it will promptly notify the data exporter about:

 

(i) any legally binding request for disclosure of the personal data by a law enforcement  authority unless otherwise prohibited, such as a prohibition under criminal law to  preserve the confidentiality of a law enforcement investigation,

 

(ii) any accidental or unauthorised access, and

 

(iii) any request received directly from the data subjects without responding to that  request, unless it has been otherwise authorised to do so;

 

(e) to deal promptly and properly with all inquiries from the data exporter relating to its  processing of the personal data subject to the transfer and to abide by the advice of the  supervisory authority with regard to the processing of the data transferred;

 

(f) at the request of the data exporter to submit its data processing facilities for audit of the  processing activities covered by the Clauses which shall be carried out by the data exporter  or an inspection body composed of independent members and in possession of the  required professional qualifications bound by a duty of confidentiality, selected by the data  exporter, where applicable, in agreement with the supervisory authority;

 

(g) to make available to the data subject upon request a copy of the Clauses, or any existing  contract for subprocessing, unless the Clauses or contract contain commercial  information, in which case it may remove such commercial information, with the exception  of Appendix 2 which shall be replaced by a summary description of the security measures  in those cases where the data subject is unable to obtain a copy from the data exporter;

 

(h) that, in the event of subprocessing, it has previously informed the data exporter and  obtained its prior written consent;

 

(i) that the processing services by the subprocessor will be carried out in accordance with  Clause 11;

 

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses  to the data exporter.

 

Clause 6 – Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach  of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is  entitled to receive compensation from the data exporter for the damage suffered.

 

  1. If a data subject is not able to bring a claim for compensation in accordance with paragraph  1 against the data exporter, arising out of a breach by the data importer or his subprocessor  of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter  has factually disappeared or ceased to exist in law or has become insolvent, the data  importer agrees that the data subject may issue a claim against the data importer as if it  were the data exporter, unless any successor entity has assumed the entire legal  obligations of the data exporter by contract of by operation of law, in which case the data  subject can enforce its rights against such entity.

 

The data importer may not rely on a breach by a subprocessor of its obligations in order  to avoid its own liabilities.

 

  1. If a data subject is not able to bring a claim against the data exporter or the data importer  referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of  their obligations referred to in Clause 3 or in Clause 11 because both the data exporter  and the data importer have factually disappeared or ceased to exist in law or have become  insolvent, the subprocessor agrees that the data subject may issue a claim against the data  subprocessor with regard to its own processing operations under the Clauses as if it were  the data exporter or the data importer, unless any successor entity has assumed the entire  legal obligations of the data exporter or data importer by contract or by operation of law, in  which case the data subject can enforce its rights against such entity. The liability of the  subprocessor shall be limited to its own processing operations under the Clauses.

 

Clause 7 – Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary  rights and/or claims compensation for damages under the Clauses, the data importer will  accept the decision of the data subject:

 

(a) to refer the dispute to mediation, by an independent person or, where applicable,  by the supervisory authority;

 

(b) to refer the dispute to the courts in the Member State in which the data exporter is  established.

 

  1. The parties agree that the choice made by the data subject will not prejudice its substantive  or procedural rights to seek remedies in accordance with other provisions of national or  international law.

 

Clause 8 – Cooperation with supervisory authorities 

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority  if it so requests or if such deposit is required under the applicable data protection law.

 

  1. The parties agree that the supervisory authority has the right to conduct an audit of the data  importer, and of any subprocessor, which has the same scope and is subject to the same  conditions as would apply to an audit of the data exporter under the applicable data  protection law.

 

  1. The data importer shall promptly inform the data exporter about the existence of  legislation applicable to it or any subprocessor preventing the conduct of an audit of the  data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data  exporter shall be entitled to take the measures foreseen in Clause 5 (b).

 

Clause 9 – Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is  established, namely Ireland.

 

Clause 10 – Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from  adding clauses on business related issues where required as long as they do not contradict the  Clause.

 

Clause 11 – Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on  behalf of the data exporter under the Clauses without the prior written consent of the  data exporter. Where the data importer subcontracts its obligations under the Clauses,  with the consent of the data exporter, it shall do so only by way of a written agreement  with the subprocessor which imposes the same obligations on the subprocessor as are  imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil

 

its data protection obligations under such written agreement the data importer shall  remain fully liable to the data exporter for the performance of the subprocessor’s  obligations under such agreement. 

 

  1. The prior written contract between the data importer and the subprocessor shall also  provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the  data subject is not able to bring the claim for compensation referred to in paragraph 1 of  Clause 6 against the data exporter or the data importer because they have factually  disappeared or have ceased to exist in law or have become insolvent and no successor  entity has assumed the entire legal obligations of the data exporter or data importer by  contract or by operation of law. Such third-party liability of the subprocessor shall be  limited to its own processing operations under the Clauses.

 

  1. The provisions relating to data protection aspects for subprocessing of the contract referred  to in paragraph 1 shall be governed by the law of the Member State in which the data  exporter is established.

 

  1. The data exporter shall keep a list of subprocessing agreements concluded under the  Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated  at least once a year. The list shall be available to the data exporter’s data protection  supervisory authority. 

 

Clause 12 – Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services,  the data importer and the subprocessor shall, at the choice of the data exporter, return  all the personal data transferred and the copies thereof to the data exporter or shall  destroy all the personal data and certify to the data exporter that it has done so, unless  legislation imposed upon the data importer prevents it from returning or destroying all or  part of the personal data transferred. In that case, the data importer warrants that it will  guarantee the confidentiality of the personal data transferred and will not actively process  the personal data transferred anymore.

 

  1. The data importer and the subprocessor warrant that upon request of the data exporter  and/or of the supervisory authority, it will submit its data processing facilities for an audit  of the measures referred to in paragraph 1.

 

ANNEX A: FURTHER PROVISIONS

 

  1. General Data Protection Regulation: References throughout these Clauses to Directive  95/46/EC shall be read as references to the General Data Protection Regulation  (2016/679) (the “Regulation”), or, if the data exporter is established in the United Kingdom  (the “UK”), to the Regulation and/or any UK local law which implements or supplements  the Regulation, as applicable from time to time, and in each case references to specific  articles or provisions of the Directive shall be read as references to the equivalent article  or provision in the Regulation or UK local law, where possible and as appropriate. 

 

  1. Onward Subprocessing: For the purposes of Clause 11 of these Clauses, the data  exporter hereby consents to the data importer subcontracting any or all of its data  processing operations performed under these Clauses in accordance with the DPA. 

 

  1. Data importers established in ‘adequate’ countries: To the extent Akeero Technologies Ltd. is  the recipient and processor of personal data pursuant to these Clauses and is:

 

(i) established in a jurisdiction recognised by the European Commission (or, if the  data exporter is established in the UK, then recognized by the relevant authorities  in the UK) as providing an adequate level of protection for personal data, the terms  of the DPA concerning transfers of personal data to other countries shall apply,  such that these Clauses will apply solely on onward transfer of the imported data  to monday.com Ltd.’s sub-processors that are located in a jurisdiction not  recognised by the European Commission as providing an adequate level of  protection for personal data; or

 

(ii) established in a jurisdiction not recognised by the European Commission as  providing an adequate level of protection for personal data, monday.com Ltd. shall  be the data importer for the purposes of these Clauses.

 

  1. Data exporters established outside the European Economic Area: To the extent the  data exporter pursuant to these Clauses is established in a jurisdiction outside the  European Economic Area, these Clauses shall apply solely in respect of transfers of  personal data concerning individuals residing within the European Economic Area. In such  cases, references to “Member State” shall be read as references to the Member State  applicable in respect of the data exporter’s processing activities in relation to these  Clauses which concern personal data of individuals residing within the European  Economic Area. 

 

  1. Instructions: For the purposes of Clause 5(a) of the Standard Contractual Clauses, the  processing described in the DPA and any other mutually agreed upon written instrument  by data exporter and data importer constitute as data exporter’s instructions to data  importer at the time of entering the DPA and/or such written instrument, to process  Personal Data on data exporter’s behalf. Any additional or alternate instructions shall be  subject to the terms of the DPA.

 

  1. Suspension of Data Transfers and Termination: If, pursuant to Clause 5(a), the data  exporter intends to suspend the transfer of personal data and/or terminate these Clauses,  it shall provide notice to the data importer and provide data importer with 30 days to cure  the non-compliance (“Cure Period”). If after the Cure Period the data importer has not or  cannot cure the non-compliance then the data exporter may suspend or terminate the

 

transfer of personal data immediately. The data exporter shall not be required to provide  such notice in instances where it considers there is a material risk of harm to data subjects  or their personal data. Notwithstanding any other terms in this Section F, in the event these  Clauses cease to be an appropriate safeguard for the transfer of the personal data in  accordance with the applicable data protection law by virtue of a binding decision by a  competent supervisory authority, the terms of the DPA concerning modifications  necessary pursuant to legislative and regulatory changes shall apply. 

 

  1. Data importer’s assistance: In the event the data exporter seeks to conduct any  assessment of the adequacy of these Clauses for the protection of the personal data being  transferred, the data importer shall provide reasonable assistance to the data exporter for  the purpose of any such assessment. 

 

  1. Audit Rights: Data exporter acknowledges and agrees that it exercises its audit right  under Clause 5(f) and Clause 12.2 by instructing data importer to comply with the audit  measures described in the DPA. 

 

  1. Transfers from Switzerland: Notwithstanding Section D above, in respect of data  transfers from a data exporter established in Switzerland, these Clauses shall be  interpreted in accordance with the governing law in Switzerland. In such cases, references  throughout these Clauses to Directive 95/46/EC shall be read as references to the relevant  legislation in Switzerland concerning data protection, privacy, data security or the handling  of information about individuals applicable to the data exporter, and defined terms in  Clause 1 shall have the meanings given to them (or reasonably equivalent terms) in such  legislation. References to “Member State” shall be read as references to Switzerland.  Without prejudice to Section A above, the parties further agree that that in respect of data  transfers where, under applicable privacy laws, the definition of “personal data” (or such  reasonably equivalent term) extends to information relating to legal entities, references in  these Clauses to “personal data” shall also include information relating to legal entities.  The parties further agree that, where required by applicable law or upon the request of the  relevant supervisory authority, they will do all such further acts as may reasonably be  required to grant effect to this Section H, including (but not limited to) executing all  documents.

 

APPENDIX 1 to the Standard Contractual Clauses

Data exporter 

The data exporter is the entity identified as “Customer” or “Controller” in the DPA

Data importer 

The data importer is Akeero Technologies Limited, a provider of web services, and/or its subprocessors (as such term is used in the DPA), as determined by Akeero Technologies Limited in accordance with the terms of the DPA concerning cross-border data transfers.

 

Data subjects 

The personal data transferred concern the categories of data subjects as described in the DPA.

 

Categories of data 

The personal data transferred concern the categories of data as described in the DPA.  

 

Processing operations 

The personal data transferred will be subject to the basic processing activities defined in Annex  1 of the DPA. 

 

APPENDIX 2 to the Standard Contractual Clauses

 

Description of the technical and organisational security measures implemented by the  data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): 

 

The technical and organisational security measures implemented by the data importer are as  referenced in the DPA and described in the Akeero Trust Centre.

 

Effective Date: June 22, 2021

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