Snapshot 12836
Normalized text
Scripts and page chrome removed; this is what change detection compares.
Data Processing Addendum
BALENA
DATA PROCESSING ADDENDUM
(Global – Containing EU Processor Clauses / UK Transfer Addendum)
1. Introduction
1.1This Data Processing Addendum ("Addendum" or "DPA") forms part of the Master Services Agreement (available at https://www.balena.io/master-agreement) and / or Terms of Service (available at https://Balena.io/terms-of-service/) or such other location as the Master Services Agreement and / or Terms of Service may be updated or posted from time to time (as applicable, the "Agreement"), entered into by and between the Customer and Balena Inc. ("Balena"), pursuant to which Customer has accessed Balena's Services as defined in the applicable Agreement.
1.2The purpose of this Addendum is to provide that the Parties shall manage their operations and activities with respect to personal data in a confidential and secure manner, and in accordance with all applicable Data Protection Laws.
1.3Therefore, the Parties wish to enter into this Addendum with effect from and including the date the Agreement was entered into or if later the date this Addendum was first made available (the "Effective Date"). Where an existing Agreement is in place between the Parties ("Existing Agreement"), the Parties agree that this Addendum shall be inserted as a new Schedule to the Existing Agreement and form a part of the Existing Agreement. The provisions of this Addendum shall replace any data processing addendum, appendix or other provisions in the Existing Agreement which deal with the processing of Personal Data and any other provisions in the Existing Agreement which expressly conflict, or are inconsistent with, any provisions of this Addendum. Customer's continued use of the Services shall constitute Customer's acceptance to these amendments of the Existing Agreement.
2. Definitions and Interpretation
2.1In this Addendum, unless the context otherwise requires:
"Adequate Country" means a country or territory recognised as providing adequate protection for Customer Personal Data under an adequacy decision or regulations made from time to time by (as applicable) (i) the European Commission under the EU GDPR, and/or (ii) the UK Secretary of State under the UK GDPR.
"Affiliate(s)" has the same meaning ascribed to it in the Agreement and, if not defined in the Agreement, the term means any entity that directly or indirectly controls, is controlled by, or is under common control or ownership with a Party, where "control," "controlled by" and "under common control with" means the possession of the power to direct, cause or significantly influence the direction of the entity, whether through the ownership of voting securities, by contract, or otherwise.
"Customer Personal Data" means all data which is defined as 'personal data,' 'personal information', or 'personally identifiable information' (or similar term) under applicable Data Protection Laws and which is submitted to or stored on the Balena platform and processed by Balena as a processor under the Agreement.
"Data Protection Laws" means all applicable data privacy, data protection, and cybersecurity laws and regulations the Customer Personal Data are subject to. "Data Protection Laws" shall include, but not be limited to, the California Privacy Rights Act of 2020 Cal. Civil Code § 1798.100 et seq., as updated, amended or replaced from time to time (and including those sections of the California Consumer Privacy Act not amended by the CPRA) ("CPRA"); (ii) the General Data Protection Regulation 2016/679 ("GDPR"); (iii) and the GDPR as implemented in the law of the United Kingdom by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020 (the "UK GDPR") and the Data Protection Act 2018, all as amended and/or replaced, and in force from time to time.
"Data Subject Request" means a request from or on behalf of a data subject to exercise any rights in respect of that person's personal data within the Customer Personal Data under Data Protection Laws.
"EEA" means the European Economic Area.
"EU" means the European Union.
"EU SCCs" means the standard contractual clauses for international transfers of personal data to third countries set out in the European Commission's Decision 2021/914 of 4 June 2021 (at http://data.europa.eu/eli/dec_impl/2021/914/oj) incorporating Module Two for Controller-to-Processor transfers as set out in Schedule 2 of this DPA.
"Security Breach" means any breach of security or other action or inaction leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data.
"Services" means the services provided by Balena to Customer under the Agreement.
"UK" means the United Kingdom.
"UK Transfer Addendum" means the template Addendum B.1.0 issued by the UK's Information Commissioner's Office and laid before Parliament in accordance with s119A of the Data Protection Act 2018 of the UK on 2 February 2022, and in force as of 21 March 2022 as set out in Schedule 3 of this DPA.
2.2In this Addendum, the terms "Data Subject", "Personal Data", "process", "processing", "transfer" (in the context of transfers of Personal Data) and "technical and organisational measures" shall have the meanings and otherwise be interpreted in accordance with applicable Data Protection Laws.
3. Roles and Compliance with Data Protection Laws
3.1The Parties shall comply with the provisions and obligations imposed on them by applicable Data Protection Laws at all times when processing Customer Personal Data in connection with this Agreement.
3.2In respect of the Customer Personal Data, Customer is the controller and Balena is the processor.
3.3The types of Customer Personal Data, categories of Data Subjects, nature and purposes, and duration of processing are as set out in Schedule 1 to this Addendum.
4. Processing and Security
4.1In performing its obligations under the Agreement, Balena shall only process the types of Customer Personal Data, and only in respect of the categories of Data Subjects, and only for the nature and purposes of processing and duration, as is set out in Schedule 1 to this Addendum.
4.2In respect of the Customer Personal Data, Customer shall:
(a)ensure that any instructions it issues to Balena shall comply with applicable Data Protection Laws; and
(b)have sole responsibility for the accuracy, quality and legality of Customer Personal Data and the means by which Customer acquired such Customer Personal Data shall establish the legal basis for processing under applicable Data Protection Laws, including providing all notices and obtaining all consents as may be required under applicable Data Protection Laws in order for Balena to process the Customer Personal Data as otherwise contemplated by this Agreement.
4.3To the extent that Balena processes any Customer Personal Data on behalf of Customer as a processor, Balena shall:
(a)process Customer Personal Data only in accordance with the Agreement and Customer's written instructions from time to time provided such instructions are lawful and, unless it is otherwise required by any applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, Balena shall notify Customer of the relevant legal requirement before processing the Customer Personal Data). Balena shall, as soon as reasonably practicable upon becoming aware, inform Customer if, in Balena's opinion, any instructions provided by Customer under this paragraph 4.3(a) infringe applicable Data Protection Laws;
(b)take commercially reasonable steps to ensure that only authorised personnel have access to Customer Personal Data, and ensure that any such personnel are committed to confidentiality, or are under an appropriate obligation of confidentiality, when processing such Customer Personal Data;
(c)taking into account:
(i)the state of the art;
(ii)the nature, scope, context and purposes of the processing; and
(iii)the risk and severity of potential harm;
implement appropriate technical and organisational measures and procedures to ensure a level of security for such Customer Personal Data appropriate to the risk presented by the processing of the Customer Personal Data, including the risks of accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data as set out in Schedule 4; and
(d)inform Customer without undue delay upon becoming aware of any such Customer Personal Data (while within Balena's or its subcontractors' or Affiliates' possession or control) being subject to a Security Breach. For avoidance of doubt, such notification and any associated co-operation by Balena shall not constitute an acknowledgement of any fault or liability by Balena in respect of the Security Breach.
5. Personal Data Inquiries and Requests
5.1Where required by Data Protection Laws, Balena agrees to promptly notify Customer if it receives a Data Subject Request. Balena will not respond to a Data Subject Request, provided that Customer agrees Balena may at its discretion respond to confirm that such request relates to Customer.
5.2Balena will provide Customer with the functionality within the Services that may include features which enable Customer to manage Data Subject Requests directly through the Services without additional assistance from Balena.
5.3If Customer does not have the ability to address a Data Subject Request, Balena shall, upon Customer's written request, provide reasonable assistance to facilitate Customer's response to the Data Subject Request to the extent such assistance is consistent with applicable law. Balena may charge a reasonable fee for its assistance where Balena reasonably believes the request is complex or onerous.
6. Return or Destruction of Personal Data
6.1Subject to paragraph 6.2, Balena shall take reasonable steps to, at Customer's option, return or delete all Customer Personal Data in its control or possession when it no longer requires such Customer Personal Data to exercise or perform its rights or obligations under this Agreement, and in any event upon Customer's instruction upon the expiry or termination of this Agreement. Balena may retain Personal Data where required by applicable law or in accordance with our privacy policy available at https://www.balena.io/privacy-policy.
6.2To the extent that Balena is required by applicable law to retain all or part of the Customer Personal Data ("Retained Data"), Balena shall:
(a)cease all processing of the Retained Data other than as required by the applicable law;
(b)keep confidential all such Retained Data in accordance with the confidentiality provisions set out in the Agreement; and
(c)continue to comply with the provisions of this Addendum in respect of such Retained Data.
7. Audit
7.1Balena shall make available to Customer such information in Balena's possession or control as Customer may reasonably request with a view to demonstrating Balena's compliance with the obligations of processors under Data Protection Laws in relation to its processing of Customer Personal Data. Balena shall permit Customer or its representatives to access any relevant premises, personnel or records of Balena on reasonable notice to audit and otherwise verify compliance with this DPA, subject to the following requirements:
(i)Customer may perform such audits no more than once per year or more frequently if required by applicable Data Protection Laws;
(ii)Customer may use a third party to perform the audit on its behalf, provided such third party executes a confidentiality agreement acceptable to Balena before the audit;
(iii)audits must be conducted during regular business hours, subject to Balena's policies, and may not unreasonably interfere with Balena's business activities;
(iv)Customer must provide Balena with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. Customer may use the audit reports only for the purposes of meeting its audit requirements under applicable Data Protection Laws and/or confirming compliance with the requirements of this DPA. The audit reports shall be confidential;
(v)to request an audit, Customer must first submit a detailed audit plan to Balena at least 6 (six) weeks in advance of the proposed audit date. The audit must describe the proposed scope, duration and start date of the audit. Balena will review the audit plan and inform Customer of any concerns or questions (for example, any request for information that could compromise Balena's confidentiality obligations or its security, privacy, employment or other relevant policies). Balena will work cooperatively with Customer to agree a final audit plan;
(vi)nothing in this paragraph 7 shall require Balena to breach any duties of confidentiality owed to any of its clients, employees or third party providers; and
(vii)all audits are at Customer's sole cost and expense.
8. Co-operation and Assistance
8.1Taking into account the nature of the processing and the information available to Balena, Balena shall take steps as are reasonably required to provide assistance as Customer reasonably requests (provided that Customer shall be responsible for paying for any costs incurred or fees charged by Balena for providing such assistance) in relation to Customer's obligations under Data Protection Laws relating to Customer Personal Data with respect to:
(a)Customer's compliance with its obligations under GDPR or UK GDPR (as applicable) with respect to security of processing;
(b)data protection impact assessments; and
(c)notifications to the Supervisory Authority under Data Protection Laws and / or communications to data subjects by Customer in response to a Security Breach.
8.2If either Party receives any complaint, notice or communication which relates directly or indirectly to the processing of Customer Personal Data by the other Party or to either Party's compliance with the applicable Data Protection Laws, it shall as soon as reasonably practicable notify the other Party and it shall provide the other Party with commercially reasonable co-operation and assistance in relation to any such complaint, notice or communication.
9. Sub-processors
9.1Customer grants a general authorization to Balena to appoint its Affiliates or third party providers including any data centre operators, cloud-based software providers, advisers, contractors, auditors and other outsourced support and service providers to process Customer Personal Data to support the performance of the Services ("Sub-Processors").
9.2A list of Sub-Processors engaged by Balena is available at the following link: https://www.balena.io/trust, which Balena shall update from time to time.
9.3If Balena engages a new Sub-Processor ("New Sub-Processor"), Balena shall inform Customer of the engagement by updating the link found at paragraph 9.2 above.
9.4Customer may object to the engagement of such New Sub-Processor by notifying Balena within 5 Business Days of Balena's update to the link found at paragraph 9.2 above, provided that such objection must be on reasonable, substantial grounds, directly related to such New Sub-Processor's ability to comply with substantially similar security and data protection obligations to those set out in this DPA. If Customer objects to such New Sub-Processor then the Parties shall seek to resolve the matter in good faith. Balena may use such New Sub-Processor whilst the objection procedure in this paragraph 9 is in process.
9.5Balena shall ensure that its contract with Sub-Processors and each New Sub-Processor shall impose obligations on the New Sub-Processor that are materially equivalent to the obligations to which Balena is subject to under this Addendum.
9.6Any sub-contracting or transfer of Customer Personal Data pursuant to this paragraph 9 shall not relieve Balena of any of its liabilities, responsibilities and obligations to Customer under this Addendum and Balena shall remain liable for the acts and omissions of its Sub-Processors.
9.7If Customer wishes to be informed of Balena's engagement with New Sub-Processors by email, it shall request such notification in writing to Balena. Balena shall, upon written confirmation of receipt of any request under this paragraph 9.7, send Customer an updated list of Sub-Processors by email to an email address requested by Customer if it engages a new Sub-Processor.
10. Transfer of Personal Data
10.1Customer agrees that its use of the Services will involve the transfer of Customer Personal Data to, and processing of Customer Personal Data in, locations outside of the UK and / or EEA from time to time, including processing in the United States.
10.2To the extent, if any, Customer Personal Data is transferred to Balena and processed by or on behalf of Balena outside the EEA (except if in an Adequate Country) in circumstances where such transfer would be prohibited by the GDPR in the absence of a transfer mechanism, the Parties agree that the EU SCCs shall apply in respect of that processing as set out in Schedule 2.
10.3To the extent, if any, Customer Personal Data is transferred to Balena and processed by or on behalf of Balena outside the UK (except if in an Adequate Country) in circumstances where such transfer would be prohibited by the UK GDPR in the absence of a transfer mechanism, the Parties agree that the EU SCCs and the UK Transfer Addendum shall apply in respect of that processing.
10.4Balena may (i) replace the EU SCCs and/or the UK Transfer Addendum generally or in respect of the EEA and/or the UK (as appropriate) with any alternative or replacement transfer mechanism in compliance with applicable Data Protection Laws, including any further or alternative standard contractual clauses or data privacy framework approved from time to time and (ii) make reasonably necessary changes to this DPA by notifying Customer of the new transfer mechanism or content of the new standard contractual clauses (provided their content is in compliance with the relevant decision or approval), as applicable.
11. General
11.1This DPA is without prejudice to the rights and obligations of the Parties under the Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Agreement, the terms (including definitions) of this DPA shall prevail so far as the subject matter concerns the processing of personal data. If there is a conflict between the provisions of the main body of the DPA and the EU SCCs and/or UK Transfer Addendum, the latter shall prevail.
11.2Balena's maximum aggregate liability to Customer under or in connection with this DPA shall not under any circumstances exceed the maximum aggregate liability of Balena to Customer as set out in the Agreement. Nothing in this DPA will limit Balena's liability in respect of personal injury or death in negligence or for any other liability or loss which may not be limited by agreement under applicable law.
SCHEDULE 1 TO DATA PROCESSING ADDENDUM
Details of Processing Activities
For the purposes of paragraph 3.3 of the DPA and Schedules 2 and 3, the Parties set out below a description of the Customer Personal Data processing activities carried out by Balena under this Agreement and further details required by the Data Protection Laws:
1. Subject matter of processing
Balena's provision of the Services to Customer.
2. Nature and purpose of processing
The collection, storage and processing of Customer Personal Data for the purposes of providing the Services to Customer.
3. Categories of Personal Data
Data relating to individuals provided to Balena via the Services, by (or at the direction of) Customer.
4. Special Categories of Personal Data
None.
5. Categories of data subjects
Data subjects include the individuals about whom data is provided to Balena via the Services by (or at the direction of) Customer including (without limitation) employees, customers, suppliers, authorized users and end users of Customer.
6. Duration
For the duration of the Agreement plus the period from the expiry of the Agreement until deletion of all Customer Personal Data by Balena in accordance with the Agreement.
SCHEDULE 2
EU SCCs
SECTION I
Clause 1
Purpose and scope
(a)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) for the transfer of data to a third country.
(b)The Parties: (i) 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 (ii) 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').
(c)These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d)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
(a)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.
(b)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
(a)Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions: (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7; (ii) Clause 8.1(b), 8.9(a), (c), (d) and (e); (iii) Clause 9(a), (c), (d) and (e); (iv) Clause 12(a), (d) and (f); (v) Clause 13; (vi) Clause 15.1(c), (d) and (e); (vii) Clause 16(e); (viii) Clause 18(a) and (b).
(b)Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a)Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b)These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c)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 – Optional
Docking clause
(a)An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b)Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c)The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
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 its 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 if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if: (i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679; (ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679; (iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims; or (iv) the onward transfer is necessary 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 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 5 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. 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
(a)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.
(b)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.
(c)In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a)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.
(b)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.
(c)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: (i) 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; (ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d)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.
(e)The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f)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
(a)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.
(b)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.
(c)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.
(d)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.
(e)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.
(f)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.
(g)The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a)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.
(b)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
(a)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.
(b)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; (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.
(c)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.
(d)The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e)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).
(f)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 to be adopted by the data exporter and/or data importer to address the situation. 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 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. 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
(a)The data importer agrees to notify the data exporter and, where possible, the data subject promptly 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.
(b)If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c)Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d)The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e)Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
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.
(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
(a)The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b)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).
(c)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 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.
(d)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.
(e)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 the Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a)Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b)The Parties agree that those shall be the courts of the Republic of Ireland.
(c)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.
(d)The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
Name: Customer
Address: Address associated with Customer's account with Balena or otherwise set out in the Agreement.
Contact person's name, position and contact details: The contact details associated with Customer's account with Balena or otherwise specified in the Agreement.
Activities relevant to the data transferred under these Clauses: As set out in Part B of this Annex I.
Signature and date: As per Agreement.
Role (controller/processor): Controller
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
Name: Balena Inc
Address: As set out in the Agreement.
Contact person's name, position and contact details: Contact details for Balena specified in the Agreement.
Activities relevant to the data transferred under these Clauses: As set out in Part B of this Annex I.
Signature and date: As per Agreement.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
As set out at Schedule 1 of the DPA.
Categories of personal data transferred
As set out at Schedule 1 of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards
As set out at Schedule 1 of the DPA.
The frequency of the transfer
Continuous.
Nature of the processing
As set out at Schedule 1 of the DPA.
Purpose(s) of the data transfer and further processing
As set out at Schedule 1 of the DPA.
The period for which the personal data will be retained
As set out at Schedule 1 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As set out at Schedule 5 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority shall be the EU or UK supervisory authority with responsibility for ensuring compliance by the Data Exporter.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
As set out at Schedule 4 of the DPA.
ANNEX III
LIST OF SUB-PROCESSORS
As set out at Schedule 5 of the DPA.
SCHEDULE 3
UK Transfer Addendum
Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
Start date The Effective Date.
The Parties Exporter (who sends the Restricted Transfer) Importer (who receives the Restricted Transfer)
Parties' details Full legal name: See Agreement.
Trading name (if different):
Main address: See Agreement.
Official registration number: See Agreement. Full legal name: See Agreement.
Trading name (if different):
Main address: See Agreement.
Official registration number: See Agreement.
Key Contact See Schedule 2 Annex 1A of the DPA. See Schedule 2 Annex 1A of the DPA.
Signature See DPA / Agreement. See DPA / Agreement.
Table 2: Selected SCCs, Modules and Selected Clauses
Addendum EU SCCs ☒ The Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions brought into effect for the purposes of this Addendum:
Module Module in operation Clause 7 (Docking) Clause 11 (Option) Clause 9a (Authorisation) Clause 9a (Time period) Personal data combined?
1
2 Applies per paragraph 10.3 of the DPA. Applies. Disapplied. General 5 days
3
4
Table 3: Appendix Information
Annex 1A: List of Parties: See parties to the Agreement.
Annex 1B: Description of Transfer: See Schedule 1 of the DPA.
Annex II: Technical and organisational measures: See Schedule 4 of the DPA.
Annex III: List of Sub-processors: See Schedule 5 of the DPA.
Table 4: Ending this Addendum when the Approved Addendum Changes
Ending this Addendum when the Approved Addendum changes Which Parties may end this Addendum as set out in Section 19:
☐ Importer ☐ Exporter ☒ neither Party
Alternative Part 2 Mandatory Clauses:
Mandatory Clauses Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.
SCHEDULE 4
Security Measures
Details of our security measures can be found at: https://www.balena.io/trust.
SCHEDULE 5
Sub-processors
https://balena.io/trust#subprocessors
Create and manage massive fleets of small devices
Loading ...
Company
TeamJobsContact
Policies
Terms of servicePrivacy StatementMaster AgreementSecurity
Subscribe to our newsletter
Copyright 2026 Balena | All Rights Reserved.