Data Protection Agreement (DPA)

Introduction

This Data Processing Agreement (henceforth, “DPA”) forms an integral part of the service agreement (henceforth, “the Service Agreement”) concluded between the customer (henceforth, “Customer”) and Aracor Inc. (henceforth, “Aracor”). Customer and Aracor are each a “Party” and, collectively, the “Parties”.

This DPA (and Standard Contractual Clauses as applicable) shall be considered pre-signed by Aracor.

By entering into the Service Agreement, Customer is deemed to have signed the DPA and the Standard Contractual Clauses, as of the effective date of the Service Agreement.

Insofar as this DPA forms an integral part of the Service Agreement concluded between Customer and Aracor, it shall become effective on the Service Agreement’s effective date.

During the performance of its obligations according to the Service Agreement, Aracor may process Customer Personal Data. Insofar as Aracor is required to process Customer Personal Data pursuant to the Service Agreement, the Parties hereby agree that the terms of this DPA shall apply.

This DPA shall prevail over any other existing data processing agreement or similar arrangement between Aracor and the Customer that may already be in place.

Definitions

Capitalized terms used but not defined in this DPA will have the meanings provided in Aracor’s Service Agreement. The following defined terms are used in this DPA:

• “Customer Data” means all data, including Personal Data that are provided to Aracor by, or on behalf of, Customer through use of the Services.

• “Data Protection Requirements” means any applicable laws, regulations, and other legal requirements relating to (a) privacy and data security; and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of any Personal Data, including the GDPR, Local EU/EEA Data Protection Laws.

• “DPA Terms” means the terms in the DPA and any Service-specific terms that specifically supplement or modify the privacy and security terms in the DPA for the Services. In the event of any conflict or inconsistency between the DPA and such Service-specific terms, the DPA terms shall prevail.

• “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

• “Local EU/EEA Data Protection Laws” means any subordinate legislation and regulation implementing the GDPR.

• “GDPR Terms” means the terms in Attachment 1, under which Aracor makes binding commitments regarding its processing of Personal Data as required by Article 28 of the GDPR.

• “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

• “Subprocessor” means other processors used by Aracor to process Customer Data as described in Article 28 of the GDPR.

Lower case terms used but not defined in this DPA, such as “personal data breach”, “processing”, “controller”, “processor”, “profiling”, “personal data”, and “data subject” will have the same meaning as set forth in Article 4 of the GDPR, irrespective of whether GDPR applies.

General Terms

Compliance with Laws

Aracor will comply with all laws and regulations applicable to its providing of the Services. However, Aracor is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not generally applicable to information technology service providers. Aracor does not determine whether Customer’s data includes information subject to any specific law or regulation. All Security Incidents are subject to the Security Incident Notification terms below.

Customer must comply with all laws and regulations applicable to its use of the Services, including laws related to biometric data, confidentiality of communications, and Data Protection Requirements. Customer is responsible for determining whether the Services are appropriate for processing of information subject to any specific law or regulation and for using the Services in a manner consistent with Customer’s legal and regulatory obligations. Customer is responsible for responding to any request from a third-party regarding Customer’s use of the Services.

Scope

The DPA Terms apply only to the processing of data in environments controlled by Aracor and Aracor’s subprocessors. This includes data sent to Aracor by the Services but does not include data that remains on Customer's premises or in any Customer selected third party operating environments.

Nature of Data Processing; Ownership

Aracor will use and otherwise process Customer Data only as described and subject to the limitations provided below (a) to provide Customer the Services in accordance with Customer’s documented instructions and (b) for business operations incidental to providing the Services to Customer. As between the parties, Customer retains all right, title and interest in and to Customer Data. Aracor acquires no rights in Customer Data. This clause does not affect Aracor’s rights in software or services Aracor provides to Customer.

Processing to Provide Services to the Customer

For the purposes of this DPA, the services consist of:

• Delivering functional capabilities as configured, and used by Customer and its users, including providing personalized user experience;

• Troubleshooting (preventing, detecting, and repairing problems); and

• Keeping the Services up to date and performant, and enhancing user productivity, reliability, efficacy, quality, and security. (together “Services”)

In each case, providing the Services is conducted in view of security obligations under Data Protection Requirements.

When providing the Services, Aracor will process Customer Data only for the purposes of providing and supporting the Services and otherwise in accordance with the Customer’s documented instructions. Unless expressly instructed by the Customer, Aracor will not use or otherwise process Customer Data for: (a) user profiling, (b) advertising or similar commercial purposes, or (c) market research aimed at creating new functionalities, services, or products or any other purpose, (d) training, fine-tuning, or improving external Large Language Model (LLM) models,

Aracor may transmit Customer Data to external LLM service providers where necessary to generate functionality or outputs requested through the Services, subject to the terms of this DPA and the applicable subprocessor arrangements. Aracor will not permit such providers to retain Customer Data beyond what is necessary to perform the requested processing or to use Customer Data to train, fine-tune, or improve their models.

Processing for Business Operations Incident to Providing the Services to Customer

For the purposes of this DPA, “business operations” means the processing operations authorized by Customer in this section.

Customer authorizes Aracor:

• to create aggregated statistical, non-personal data from data containing pseudonymized identifiers (such as usage logs containing unique, pseudonymized identifiers); and

• to calculate statistics related to Customer Data

in each case without accessing or analyzing the content of Customer Data and limited to achieving the purposes below, each as incident to providing the Services to Customer.

Those purposes are:

• billing and account management;

• internal reporting and business modeling, such as forecasting, revenue, capacity planning, and product strategy; and

• financial reporting.

When processing for these business operations, Aracor will apply principles of data minimization and will not use or otherwise process Customer Data for: (a) user profiling, (b)advertising or similar commercial purposes, or (c) any other purpose, other than for the purposes set out in this section. In addition, as with all processing under this DPA, processing for business operations remains subject to Aracor’s confidentiality obligations and commitments under Disclosure of Processed Data.

Disclosure of Processed Data

Aracor will not disclose or provide access to any Customer Data except: (1) as Customer directs; (2) as described in this DPA; or (3) as required by law.

Aracor will not disclose or provide access to any Customer Data to law enforcement unless required by law. If law enforcement contacts Aracor with a demand for Customer Data, Aracor will attempt to redirect the law enforcement agency to request that data directly from Customer. If compelled to disclose or provide access to any Customer Data to law enforcement, Aracor will promptly notify Customer and provide a copy of the demand unless legally prohibited from doing so.

Upon receipt of any other third-party request for Customer Data, Aracor will promptly notify Customer unless prohibited by law. If the request is valid, Aracor will attempt to redirect the third party to request the data directly from Customer.

Aracor will only disclose or provide access to any Customer Data as required by law provided that the laws and practices respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society and, as applicable, to safeguard one of the objectives listed in Article 23(1) of GDPR.

Aracor will not provide any third party: (a) direct, indirect, blanket, or unfettered access to Customer Data; (b) platform encryption keys used to secure Customer Data or the ability to break such encryption; or (c) access to Customer Data if Aracor is aware that the data is to be used for purposes other than those stated in the third party’s request.

In support of the above, Aracor may provide Customer’s basic contact information to the third party.

Processing of Personal Data; GDPR

All Customer Data processed by Aracor in connection with providing the Services is obtained as part of data generated, derived or collected by Aracor, including data sent to Aracor as a result of a Customer’s use of the Services.

Processor and Controller Roles and Responsibilities

Customer and Aracor agree that Customer is the controller of Customer Data and Aracor is the processor of such data, except when Customer acts as a processor of Customer Data, in which case Aracor is a subprocessor. When Aracor acts as the processor or subprocessor of Customer Data, it will process Customer Data only on documented instructions from Customer. Customer agrees that Customer’s Service Agreement (including this DPA’s Terms and any applicable updates), along with the service documentation and Customer’s use and configuration of features in the Services, are Customer’s complete documented instructions to Aracor for the processing of Customer Data. Information on use and configuration of the Service can be found in the Service Agreement or other agreement incorporating this DPA. Any additional or alternate instructions must be agreed to according to the process for amending Customer’s Service Agreement. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Aracor that Customer’s instructions, including appointment of Aracor as a processor or subprocessor, have been authorized by the relevant controller.

To the extent Aracor uses or otherwise processes Customer Data subject to the GDPR for business operations incident to providing the Services to Customer, Aracor will comply with the obligations of an independent data controller under the GDPR for such use. Aracor accepts the added responsibilities of a data “controller” under GDPR for such processing to: (a) act consistent with regulatory requirements, to the extent required under GDPR; and (b) provide increased transparency to Customer and confirm Aracor’s accountability for such processing. Aracor employs safeguards to protect Customer Data in such processing, including those identified in Schedule A of this DPA and those contemplated in Article 6(4) of the GDPR.

Processing Details

The parties acknowledge and agree that:

• Subject Matter. The subject-matter of the processing is limited to Customer Data within the scope of the section of this DPA entitled “Nature of Data Processing; Ownership” above and the GDPR.

• Duration of the Processing. The duration of the processing shall be in accordance with Customer instructions and the terms of the DPA.

• Nature and Purpose of the Processing. The nature and purpose of the processing shall be to provide the Services pursuant to Customer’s Service Agreement and for business operations incident to providing the Services to Customer (as further described in the section of this DPA entitled “Nature of Data Processing; Ownership” above).

• Categories of Data. The types of Customer Data processed by Aracor when providing the Services include: (i) Personal Data that Customer elects to include in Customer Data; and (ii) those expressly identified in Article 4 of the GDPR that may be generated, derived or collected by Aracor, including data sent to Aracor as a result of a Customer’s use of service-based capabilities. The types of Personal Data that Customer elects to include in Customer Data may be any categories of Personal Data identified in records maintained by Customer acting as controller pursuant to Article 30 of the GDPR, including the categories of Personal Data set forth in Schedule B.

• Data Subjects. The categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and may include any other categories of data subjects as identified in records maintained by Customer acting as controller pursuant to Article 30 of the GDPR, including the categories of data subjects set forth in Schedule B.

Data Subject Rights; Assistance with Requests

Aracor will make available to Customer, in a manner consistent with the functionality of the Services and Aracor’s role as a processor of Personal Data of Data Subjects, the ability to fulfill Data Subject requests to exercise their rights under the GDPR. If Aracor receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with the Services for which Aracor is a data processor or subprocessor, Aracor will redirect the Data Subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services. Aracor shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

Records of Processing Activities

To the extent the GDPR requires Aracor to collect and maintain records of certain information relating to Customer, Customer will, where requested, supply such information to Aracor and keep it accurate and up to date. Aracor may make any such information available to the supervisory authority if required by the GDPR.

Data Security

Security Practices and Policies

Aracor will implement and maintain appropriate technical and organizational measures to protect Personal Data, including within the scope of GDPR, against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed. Schedule A of this DPA sets forth the same measures.

Aracor may add industry or government standards at any time.

Data Access

Aracor employs least privilege access mechanisms to control access to Customer Data (including any Personal Data therein). Role-based access controls are employed to ensure that access to Customer Data required for service operations is for an appropriate purpose and approved with management oversight. Aracor maintains Access Control mechanisms described in the table entitled “Security Measures” in Schedule A; and there is no standing access by Aracor personnel to Customer Data, and any required access is for a limited time.

Customer Responsibilities

Customer is solely responsible for making an independent determination as to whether the technical and organizational measures for the Services displayed in Schedule A of this DPA meet Customer’s requirements, including any of its security obligations under applicable Data Protection Requirements. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of its Personal Data as well as the risks to individuals) the security practices and policies implemented and maintained by Aracor provide a level of security appropriate to the risk with respect to its Personal Data. Customer is responsible for implementing and maintaining privacy protections and security measures for components that Customer provides or controls.

Security Incident Notification

If Aracor becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data while processed by Aracor (a “Security Incident”), Aracor will promptly and without undue delay (1) notify Customer of the Security Incident; (2) investigate the Security Incident and provide Customer with detailed information about the Security Incident; (3) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.

Notification(s) of Security Incidents will be delivered to Customer by any means Aracor selects, including via email. It is Customer’s sole responsibility to ensure Customer maintains accurate contact information with Aracor for each applicable Product and Professional Service. Customer is solely responsible for complying with its obligations under incident notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Security Incident.

Aracor shall make reasonable efforts to assist Customer in fulfilling Customer’s obligation under GDPR Article 33 or other applicable law or regulation to notify the relevant supervisory authority and data subjects about such Security Incident.

Aracor’s notification of or response to a Security Incident under this section is not an acknowledgement by Aracor of any fault or liability with respect to the Security Incident.

Customer must notify Aracor promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the Services.

Data Transfers and Location

Location of Customer Data

For the Services, Aracor will store Customer Data at rest within the US.

Aracor does not control or limit the regions from which Customer or Customer’s end users may access or move Customer Data.

Data Transfers

Personal Data that Aracor processes on Customer’s behalf may not be transferred to, or stored and processed in a geographic location except in accordance with the DPA and the safeguards provided below in this section. Taking into account such safeguards, Customer appoints Aracor to transfer Customer Data, to any country in which Aracor or its Subprocessors operate and to store and process Personal Data to provide the Services, except as described elsewhere in the DPA.

In the event the Services are covered by more than one transfer mechanism, the transfer of Personal Data will be subject to one or more transfer mechanism, as applicable, and in accordance with the following order of precedence: (a) an adequacy decision granted by the European Commission (b) the EU Standard Contractual Clauses; (c) the EU Standard Contractual Clauses as modified and applicable under the Swiss data protection law (d) the UK International Data Transfer Addendum; and, if neither (a), (b), (c), (d) is applicable, then (e) other applicable data transfer mechanism permitted under applicable Data Protection Law. To the extent that Customer is located in the United States of America and is self-certified under the Data Privacy Framework Aracor further agrees (i) to provide at least the same level of protection to any personal data as required by the Data Privacy Principles; (ii) upon written notice, to work with Customer to take reasonable and appropriate steps to stop and remediate any unauthorized processing of personal data. The same will apply to Sub-Processors certified under the Data Privacy Framework. Customer agrees to notify Aracor in writing, without undue delay, if its self-certification to the Data Privacy Framework is withdrawn, terminated, revoked, or otherwise invalidated.

Data Retention and Deletion

At all times during the term of Customer’s subscription or the applicable Terms of Service engagement, Customer will have the ability to access, extract and delete Customer Data stored in the Services.

Aracor will retain Customer Data for 30 days after expiration or termination of Customer’s subscription. After the 30-day retention period ends, Aracor will disable Customer’s account and delete the Customer Data, unless authorized or required under this DPA or applicable law to retain such data. During the retention period after expiration or termination, Aracor will not use, process or transfer Customer Data except as strictly necessary to provide support or restore access upon Customer’s request.

Processor Confidentiality Commitment

Aracor will ensure that its personnel engaged in the processing of Personal Data (i) will process such data only on instructions from Customer or as described in this DPA, and (ii) will be obligated to maintain the confidentiality and security of such data even after their engagement ends. Aracor shall provide periodic and mandatory data privacy and security training and awareness to its employees with access to Personal Data in accordance with applicable Data Protection Requirements and industry standards.

Notice and Controls on use of Subprocessors

Aracor may hire Subprocessors to provide certain limited or ancillary services on its behalf. Customer consents to this engagement. The above authorizations will constitute Customer’s prior written consent to the subcontracting by Aracor of the processing of Personal Data if such consent is required under applicable law.

Aracor is responsible for its Subprocessors’ compliance with Aracor’s obligations in this DPA. Aracor makes available information about Subprocessors in Schedule C. When engaging any Subprocessor, Aracor will aim to ensure via a written contract that the Subprocessor may access and process Personal Data only to deliver the services Aracor has retained them to provide and is prohibited from using Personal Data for any other purpose. Aracor will aim to ensure that Subprocessors are bound by written agreements that require them to provide at least the level of data protection required of Aracor by the DPA, including the limitations on disclosure of Processed Data.

From time to time, Aracor may engage new Subprocessors. Aracor will give Customer notice and, as applicable, update the website and provide Customer with a mechanism to obtain notice of that update of any new Subprocessor with access to Personal Data.

California Consumer Privacy Act (CCPA)

If Aracor is processing Personal Data within the scope of the CCPA, Aracor makes the following additional commitments to Customer. Aracor will process Personal Data on behalf of Customer and, not retain, use, or disclose that data for any purpose other than for the purposes set out in the DPA Terms and as permitted under the CCPA, including under any “sale” exemption. In no event will Aracor sell any such data. These CCPA terms do not limit or reduce any data protection commitments Aracor makes to Customer in the DPA Terms, Service Agreement, or other agreement between Aracor and Customer.

How to Contact Aracor

If Customer believes that Aracor is not adhering to its privacy or security commitments, Customer may contact customer support. Aracor’s mailing address is: info@aracor.ai with a copy to kf@aracor.ai

Additional suggestions are listed in the comment.

Schedule A – Security Measures

Aracor will maintain for Personal Data the following security measures, which in conjunction with the security commitments in this DPA (including the GDPR Terms), are Aracor’s only responsibility with respect to the security of that data.

Schedule B – Data Subjects and Categories of Personal Data

Data subjects

Data subjects include the Customer’s representatives and end-users including employees, contractors, collaborators, and customers of the Customer. Data subjects may also include individuals attempting to communicate or transfer personal information to users of the services provided by Aracor. Aracor acknowledges that, depending on Customer’s use of the Services, Customer may elect to include personal data from any of the following types of data subjects in the personal data:

• Employees, contractors and temporary workers (current, former, prospective) of Customer;

• Dependents of the above;

• Customer's collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former);

• Users (e.g., customers, clients, patients, visitors, etc.) and other data subjects that are users of Customer's services;

• Partners, stakeholders or individuals who actively collaborate, communicate or otherwise interact with employees of the Customer and/or use communication tools such as apps and websites provided by the Customer;

• Stakeholders or individuals who passively interact with Customer (e.g., because they are the subject of an investigation, research or mentioned in documents or correspondence from or to the Customer);

• Minors; or

• Professionals with professional privilege (e.g., doctors, lawyers, notaries, religious workers, etc.).

Categories of data

The personal data that is included in e-mail, documents and other data in an electronic form in the context of the Services. Aracor acknowledges that, depending on Customer’s use of the Services, Customer may elect to include personal data from any of the following categories in the personal data:

• Basic personal data (for example place of birth, street name and house number (address), postal code, city of residence, country of residence, mobile phone number, first name, last name, initials, email address, gender, date of birth), including basic personal data about family members and children;

• Authentication data (for example username, password or PIN code, security question, audit trail);

• Contact information (for example addresses, email, phone numbers, social media identifiers; emergency contact details);

• Unique identification numbers and signatures (for example Social Security number, bank account number, passport and ID card number, driver's license number and vehicle registration data, IP addresses, employee number, student number, patient number, signature, unique identifier in tracking cookies or similar technology);

• Pseudonymous identifiers;

• Financial and insurance information (for example insurance number, bank account name and number, credit card name and number, invoice number, income, type of assurance, payment behavior, creditworthiness);

• Commercial Information (for example history of purchases, special offers, subscription information, payment history);

• Internet activity (for example browsing history, search history);

• Any other personal data identified in Article 4 of the GDPR.

Schedule C – List of Subprocessors

To support delivery of our Services, Aracor, may engage and use data processors with access to certain Customer Data (each, a "Subprocessor"). This page provides important information about the identity, location and role of each Subprocessor.

Subprocessors

Aracor currently uses subprocessors to provide infrastructure services, and to help us provide customer support and email notifications. Prior to engaging any subprocessor, Aracor performs due diligence to evaluate their privacy, security and confidentiality practices, and executes an agreement implementing its applicable obligations. Agreements are executed on terms that offer privacy guarantees no less protective than those at Aracor.

The list of current subprocessors is available here: https://trust.aracor.ai/subprocessors  

Affiliates

Depending on the geographic location of a Customer or their Authorized Users, and the nature of the Services provided, Aracor may also engage one or more of its Affiliates as Subprocessors to deliver some or all of the Services provided to a Customer.

Updates

As our business grows and evolves, the subprocessors we engage may also change. We will provide notice of any new subprocessors by posting such updates here. Please check back frequently for updates.

Schedule D – Standard Contractual Clauses

SECTION I

Clause 1. Purpose and scope

1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.

2. The Parties:

1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

‍

Clause 2. Effect and invariability of the Clauses

1. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3. Third-party beneficiaries

1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

2. Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

4. Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

5. Clause 13;

6. Clause 15.1(c), (d) and (e);

7. Clause 16(e);

8. Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4. Interpretation

1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5 Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6 Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Intentionally omitted

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8 Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1   Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2   Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3   Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4   Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5   Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6   Security of processing

(a)The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7   Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8   Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9   Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b)The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data  exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9 Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10 Data subject rights

1. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

2. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11 Redress

1. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

2. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

2. refer the dispute to the competent courts within the meaning of Clause 18.

4. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12 Liability

1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13 Supervision

1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14 Local laws and practices affecting compliance with the Clauses

1. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]

6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three: if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 Obligations of the data importer in case of access by public authorities

15.1   Notification

1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary, with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

15.2   Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16 Non-compliance with the Clauses and termination

1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

4. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17 Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18 Choice of forum and jurisdiction

1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

2. The Parties agree that those shall be the courts of Ireland.

3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX  

ANNEX I

A.   LIST OF PARTIES

Data exporter(s):  

Name:  

Address:  

Contact person’s name, position and contact details:  

Signature and date: …

Role (controller/processor): Controller  

Data importer(s):  

Name: Name: Aracor Inc

Address: 1010 Brickell Ave

Unit 2105

Miami, FL 33131

Contact person’s name, position and contact details: Katya Fisher, CEO, kf@aracor.ai

Signature and date: …

Role (controller/processor): Processor

B.   DESCRIPTION OF TRANSFER

See Schedule B

C.   COMPETENT SUPERVISORY AUTHORITY

Data Protection Commission (DPC)

6 Pembroke Row
Dublin 2
D02 X963
Ireland

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

See Schedule A  

ANNEX III

LIST OF SUB-PROCESSORS

See Schedule C

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