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Data Processing Addendum
This Data Processing Addendum (this “DPA”) is entered into by and between
the Upscope Entity (“Upscope”, or “we”) and the Customer listed on the
Master Services Agreement this DPA is incorporated into (the “Customer”, or
“you”).
Customer has entered into one or more agreements with Upscope (each, as
amended from time to time, an “Agreement”) governing the provision of
Upscope’s software (the “Services”). This DPA will amend the terms of the
Agreement to reflect the parties’ rights and responsibilities with respect to
the processing and security of Customer Data (as defined below) under the
Agreement.
Any capitalized terms not defined in this DPA shall have the meanings set
forth in the Agreement.
1. Definitions.
1.1. “CCPA” means the California Consumer Privacy Act of 2018
(California Civil Code §§ 1798.100 et seq.) and its regulations; as
may be amended, superseded or replaced from time to time.
Upscope Data Processing Addendum / November 2024 1
1.2. “Customer Data” means data Customer submits to, stores on, or
sends to Upscope via the Service.
1.3. “Data Incident” means a breach of security leading to the
accidental or unlawful destruction, loss, alteration, unauthorized
disclosure of, or access to, Personal Data on systems that are
managed and controlled by Upscope. Data Incidents will not
include unsuccessful attempts or activities that do not
compromise the security of Personal Data, including, without
limitation, pings, port scans, denial of service attacks, network
attacks on firewall or networked systems, or unsuccessful login
attempts.
1.4. “Europe” means, for the purposes of this DPA, the member states
of the European Economic Area, Switzerland and the United
Kingdom.
1.5. “European Data Protection Legislation” means the data
protection and privacy laws and regulations enacted in Europe
and applicable to the Personal Data in question, including as
applicable: (a) the GDPR; (b) the Swiss Federal Data Protection Act
of 19 June 1992 and its Ordinance; and/or (c) in respect of the
United Kingdom, the GDPR as it forms part of UK law by virtue of
Section 3 of the European Union (Withdrawal) Act 2018 (“UK
GDPR”) and the Data Protection Act 2018; in each case as may be
amended, superseded or replaced from time to time.
1.6. “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.
1.7. “Notification Email Address” means the email address(es) that
Customer designates to receive notifications when Customer
creates an account to use the Service. Customer agrees to be
Upscope Data Processing Addendum / November 2024 2
solely responsible for ensuring that their Notification Email
Address is current and valid at all times.
1.8. “Personal Data” means any personal data or personal
information (as those terms are defined by European Data
Protection Legislation and the CCPA, as applicable) contained
within Customer Data.
1.9. “Privacy Laws” means: (a) the CCPA; and (b) European Data
Protection Legislation.
1.10. “Standard Contractual Clauses” or “SCCs” means (a) where the
GDPR applies, the standard contractual clauses as approved by
the European Commission pursuant to its decision 2021/914 of 4
June 2021 (“EU SCCs”); and (ii) where the UK GDPR applies, the
standard data protection clauses adopted pursuant to or
permitted under Article 46 of the UK GDPR (“UK SCCs”).
1.11. “Subprocessor” means a third party that we use to process
Customer Data in order to provide parts of the Service and/or
related technical support. For the avoidance of doubt, the term
Subprocessor shall not include Upscope employees or
contractors.
1.12. “Term” means the term of the Agreement.
1.13. The terms “personal data”, “special categories of personal
data”, “data subject”, “process”, “processing”, “controller”,
“processor” and “supervisory authority” have the meanings
given in European Data Protection Legislation or, if not defined
therein, the GDPR
2. Data Processing.
2.1. Roles and Regulatory Compliance.
2.1.1. Scope of this DPA. This DPA applies where and only to the
extent Upscope processes Personal Data as a processor (for
Upscope Data Processing Addendum / November 2024 3
the purposes of European Data Protection Legislation) or
service provider (for the purposes of and as defined by the
CCPA).
2.1.2. Roles and Responsibilities. The Parties acknowledge and
agree as follows: (i) that Upscope will process the Personal
Data as described in Annex I; (ii) that for the purposes of
European Data Protection Legislation, Upscope is a
processor of Personal Data and Customer is the controller
(or a processor acting on behalf of a third party controller);
(iii) if the CCPA applies to processing of Personal Data,
Upscope shall act solely as a service provider (as that term is
defined under the CCPA) on behalf of Customer; (iv)
Upscope shall not retain, use or disclose Personal Data for
any purpose other than the purposes described in this DPA,
and shall not “sell” Personal Data (within the meaning
under the CCPA); and (iv) that each party will comply with
their obligations under Privacy Laws with respect to the
processing of Personal Data.
2.1.3. Authorization by Third Party Controller. If Customer is a
processor of Personal Data acting on behalf of a third party
controller:
2.1.3.1. Customer warrants to Upscope that Customer’s
instructions and actions with respect to that Personal
Data, including Customer’s appointment of Upscope
as another processor, have been authorized by the
relevant controller; and
2.1.3.2. Customer will serve as Upscope’s sole point of contact
and where Upscope would otherwise be required
(including for the purposes of the Standard
Contractual Clauses) to provide information,
assistance or cooperation to or seek authorization
Upscope Data Processing Addendum / November 2024 4
from any such third party controllers, Upscope may
provide such information, assistance or cooperation
to or seek such authorization from Customer.
2.2. Customer Responsibilities.
2.2.1. Customer Authorization. Upscope shall process Personal
Data in accordance with Customer’s documented lawful
instructions. By entering into this DPA, Customer hereby
authorizes and instructs us to process Personal Data: (i) to
provide the Service, and related technical support; (ii) as
otherwise permitted or required by Customer’s use of the
Service and/or Customer’s requests for technical support;
(iii) as otherwise permitted or required by the Agreement,
including this DPA; and (iv) as further documented in any
other written instructions that are agreed by the parties.
Upscope will not process Personal Data for any other
purpose, unless required to do so by applicable law or
regulation. The parties agree that the Agreement (including
this DPA), and Customer’s use of the Service in accordance
with the Agreement, set out Customer’s complete and final
processing instructions and any processing outside the
scope of these instructions (if any) shall require prior written
agreement between the parties. Customer shall ensure its
instructions are lawful and that the processing of Personal
Data in accordance with such instructions will not violate
Privacy Laws. Notwithstanding the foregoing, if Customer is
a processor of Personal Data acting on behalf of a third
party controller then where legally required Upscope is
entitled to follow the instructions of such third party
controllers with respect to their Personal Data.
2.2.2. Prohibition on Sensitive Data. Customer will not submit,
store, or send any sensitive data or special categories of
personal data (collectively, “Sensitive Data”) to Upscope for
Upscope Data Processing Addendum / November 2024 5
processing, and Customer will not permit nor authorize any
of Customer’s employees, agents, contractors, or data
subjects to submit, store, or send any Sensitive Data to
Upscope for processing. Customer acknowledges that
Upscope does not request or require Sensitive Data as part
of providing the Service, that Upscope does not wish to
receive or store Sensitive Data, and that Upscope’s
obligations in this DPA will not apply with respect to
Sensitive Data. Customer shall ensure that they correctly
configure the Software (specifically the Masking
functionality) to comply with this DPA.
3. Deletion.
3.1. During the Subscription Term. Upscope will enable Customer to
delete Personal Data during the Subscription Term in a manner
that is consistent with the Documentation. If Customer uses the
Software to delete any Personal Data in a manner that would
prevent Customer from recovering Personal Data at a future time,
Customer agrees that this will constitute an instruction to
Upscope to delete Personal Data from the Upscope Cloud in
accordance with Upscope’s standard processes and applicable
law. Upscope will comply with this instruction as soon as
reasonably practicable, but in all events in accordance with
applicable law.
3.2. Deletion when the Subscription Term expires. When the
Subscription Term expires, Upscope will destroy any Personal
Data in our possession or control. This requirement will not apply
to the extent that we are required by applicable law to retain
some or all of the Personal Data, in which event we will isolate
and protect the Personal Data from further processing and delete
in accordance with Upscope’s deletion practices, except to the
extent required by law. You acknowledge that you will be
responsible for exporting, before the Subscription Term expires,
Upscope Data Processing Addendum / November 2024 6
any Personal Data you want to retain after the Subscription Term
expires.
4. Data Security.
4.1. Security Measures. Upscope will implement and maintain
appropriate technical and organizational measures to protect
Personal Data against Data Incidents and to preserve the security
and confidentiality of Personal Data, as described on the Upscope
Website (collectively, the “Security Measures”). Upscope shall
ensure that any person who is authorized by Upscope to process
Personal Data shall be under an appropriate obligation of
confidentiality (whether a contractual or statutory duty).
Customer acknowledges that Security Measures are subject to
technical progress and development and that accordingly we
may update or modify the Security Measures from time to time,
provided that such updates and modifications do not result in the
degradation of the overall security of the Service.
4.2. Data Incidents. Upon becoming aware of a Data Incident, we will
notify you promptly and without undue delay, and will take
reasonable steps to minimize harm and secure Personal Data.
Any notifications that we send you pursuant to this Section 4.2
will be sent to your Notification Email Address and will describe,
to the extent possible and/or known to Upscope, the details of the
Data Incident, the steps we have taken to mitigate the potential
risks, and any suggestions we have for you to minimize the
impact of the Data Incident. We will not assess the contents of
any Personal Data in order to identify information that may be
subject to specific legal requirements. You are solely responsible
for complying with any incident notification laws that may apply
to you, and to fulfilling any third-party notification obligations
related to any Data Incident(s). Our notification of or response to a
Data Incident under this Section will not constitute an
Upscope Data Processing Addendum / November 2024 7
acknowledgement of fault or liability with respect to the Data
Incident.
4.3. Customer’s Security Responsibilities. Customer agrees that,
without prejudice to our obligations under Sections 4.1 or 4.2: (i)
you are solely responsible for your use of the Service, including
making appropriate use of the Service to ensure a level of security
appropriate to the risk in relation to Customer Data, securing any
account authentication credentials, systems, and devices you use
to use the Service, and backing up your Customer Data. You
understand and agree that we have no obligation to protect
Customer Data that you elect to store or transfer outside of our or
our Subprocessors’ systems (e.g., offline or on-premise storage).
You are solely responsible for evaluating whether the Service and
our commitments under this Section 4 meet your needs,
including with respect to your compliance with any of your
security obligations under Privacy Laws, as applicable.
4.4. Audit Rights.
4.4.1. Audit Reports. You acknowledge that Upscope is regularly
audited against various information security standards by
independent third-party auditors and internal auditors,
respectively. Upon request, we shall supply (on a
confidential basis) a summary copy of our audit report(s), so
that you can verify our compliance with the audit standards
against which it has been assessed, and this DPA. Further,
we will provide written responses (on a confidential basis) to
all reasonable requests for information necessary to confirm
our compliance with this DPA, provided that you will not
exercise this right more than once per calendar year.
4.4.2. Independent Audits. While it is the parties’ intention to rely
ordinarily on the provision of the above audit report(s) to
verify our compliance with this DPA, we will allow an
Upscope Data Processing Addendum / November 2024 8
internationally-recognized independent auditor that you
select to conduct audits to verify our compliance with our
obligations under this DPA. You must send any requests for
audits under this Section 4.4.2 to legal@upscope.com.
Following our receipt of your request, the parties will
discuss and agree in advance on the reasonable start date,
scope, duration, and security and confidentiality controls
applicable to the audit. You will be responsible for any costs
associated with the audit. You agree not to exercise your
audit rights under this Section 4.4.2 more than once in any
twelve (12) calendar month period, except (i) if and when
required by a competent data protection authority; or (ii) an
audit is necessary due to a Data Incident. You agree that (to
the extent applicable), you shall exercise any audit rights
under Privacy Laws and the Standard Contractual Clauses
by instructing us to comply with the measures described in
this Section 4.4.
5. Data Subject Rights.
5.1. You acknowledge that the Software may, depending on the
functionality of the Software, enable you to: (i) access the
Customer Data; (ii) rectify inaccurate Customer Data; (iii) restrict
the processing of Customer Data; (iv) delete Customer Data; and
(v) export Customer Data.
5.2. To the extent that you cannot access the relevant Personal Data
within the Service, we will provide you, at your expense, with all
reasonable and timely assistance to enable you to respond to: (i)
requests from data subjects who wish to exercise any of their
rights under applicable Privacy Laws; and (ii) any other
correspondence, enquiry or complaint received from a data
subject, supervisory authority or other third party in connection
with the processing of the Customer Data. In the event that any
such request, correspondence, enquiry or complaint is made
Upscope Data Processing Addendum / November 2024 9
directly to us, we will promptly inform you of it, and provide you
with as much detail as reasonably possible.
6. Data Transfers.
6.1. Data Storage and Processing Facilities. You agree that, unless
you configure your Account to only use our European or UK
datacenter, we will, subject to Section 6.2, store and process
Customer Data in the United States and any other countries we
operate datacenters in. Upscope shall ensure that such transfers
are made in compliance with applicable Privacy Laws and this
DPA.
6.2. Transfers of Data out of Europe. If the storage and/or processing
of Personal Data as described in Section 6.1 involves a transfer of
Personal Data to Upscope outside of Europe, and European Data
Protection Legislation applies to the transfer (collectively,
“Transferred Personal Data”), then (i) the Standard Contractual
Clauses shall be incorporated into and form a part of this DPA in
accordance with Section 6.3. With respect to Transferred Personal
Data, you agree that if we adopt an alternative data transfer
mechanism (including any new version of, or successor to, the
Standard Contractual Clauses adopted pursuant to applicable
European Data Protection Legislation) for Transferred Personal
Data not described in this DPA (“Alternative Transfer Solution”),
the Alternative Transfer Solution shall apply instead of the transfer
mechanisms described in this DPA (but only to the extent such
Alternative Transfer Solution complies with applicable European
Data Protection Legislation and extends to the territories to which
Transferred Personal Data is transferred), and if we request that
you take any action (including, without limitation, execution of
documents) reasonably required to give full effect to that
solution, you will promptly do so.
Upscope Data Processing Addendum / November 2024 10
6.3. Standard Contractual Clauses. For the purposes of the Standard
Contractual Clauses, the parties agree that (i) Upscope is the “data
importer” and Customer is the “data exporter”; (ii) the EU SCCs
shall be incorporated in the form attached hereto and the UK
SCCs shall be incorporated by reference; (iii) the Annexes or
Appendices of the EU SCCs and UK SCCs (as applicable) shall be
populated with the information from Annexes I, II and III of this
DPA; and (iv) the EU SCCs shall be governed by the laws of the
Republic of Ireland and the UK SCCs shall be governed by the
laws of England and Wales. It is not the intention of either party to
contradict or restrict any of the provisions set forth in the
Standard Contractual Clauses and, accordingly, if and to the
extent the Standard Contractual Clauses conflict with any
provision of the Agreement (including this DPA), the Standard
Contractual Clauses shall prevail to the extent of such conflict. In
particular, nothing in the DPA shall exclude the rights of
third-party beneficiaries granted under the Standard Contractual
Clauses. You agree that in the event we cannot ensure
compliance with the Standard Contractual Clauses, we will inform
you promptly and you will provide us with a reasonable period of
time to cure any non-compliance. You will reasonably cooperate
with us to agree what additional safeguards or measures, if any,
may be reasonably required to cure the non-compliance and will
only be entitled to suspend the transfer of Personal Data and/or
terminate the affected parts of the Service if we have not or
cannot cure the non-compliance before the end of the cure
period.
7. Subprocessors.
7.1. Consent to Engagement. You authorize us to engage third
parties as Subprocessors. Whenever we engage a Subprocessor,
we will enter into a contract with that Subprocessor which
imposes data protection terms that require the Subprocessor to
Upscope Data Processing Addendum / November 2024 11
protect Personal Data to an equivalent standard required under
this DPA, and we shall remain responsible for the Subprocessor’s
compliance with the obligations of this DPA and for any acts or
omissions of the Subprocessor that cause us to breach any of our
obligations under this DPA.
7.2. List of Subprocessors. A list of our current Subprocessors is set
out in Annex III. We may update the list of Subprocessors upon
thirty (30) days’ prior written notice to you, during which period
you will have the opportunity to object as described in Section 7.3
below.
7.3. Objections; Sole Remedy. During the thirty (30) day period
beginning on the date we notify you of any new or replacement
Subprocessor, you have the right to object to the appointment of
that Subprocessor on reasonable grounds that the Subprocessor
does not or cannot comply with the requirements set forth in this
DPA (each, an “Objection”). If we do not remedy or provide a
reasonable workaround for your Objection within a reasonable
time, you may, as your sole remedy and our sole liability for your
Objection, terminate the Agreement for your convenience, and
without further liability to either party. Upscope will not owe
Customer a refund of any fees Customer has paid in the event
Customer decides to terminate the Agreement pursuant to this
Section.
7.4. Disclosure of Subprocessor agreements. You agree that by
complying with this Section 7, we fulfil our obligations under
Clause 9(a) and 9(b) of the Standard Contractual Clauses. You
further acknowledge that, for the purposes of Clause 9(c) of the
Standard Contractual Clauses, we may be restricted from
disclosing Subprocessor agreements to you (or the relevant third
party controller) due to confidentiality restrictions.
Notwithstanding this, we shall use reasonable efforts to require
Subprocessors to permit us to disclose Subprocessor agreements
Upscope Data Processing Addendum / November 2024 12
to you and, in any event, will provide (upon request and on a
confidential basis) all information we reasonably can in
connection with such Subprocessor agreement.
8. Additional information.
8.1. You acknowledge that we are required under European Data
Protection Legislation (i) to collect and maintain records of certain
information, including, among other things, the name and
contact detail of each processor and/or controller on whose behalf
we are acting and, where applicable, of such processor’s or
controller’s local representative and data protection officer; and
(ii) to make such information available to the supervisory
authorities. Accordingly, if European Data Protection Legislation
applies to the processing of Personal Data, you will, when
requested, provide this additional information to us, and ensure
that the information is kept accurate and up-to-date.
9. Data Protection Impact Assessment.
9.1. We will provide you with reasonable and timely assistance as you
may require in order to conduct a data protection impact
assessment and, if necessary, consult with the relevant data
protection authority
10. Miscellaneous.
10.1. With the exception of the third-party beneficiary rights granted
(where applicable) under the Standard Contractual Clauses, there
are no third-party beneficiaries to this DPA. Except as expressly
provided herein, nothing in this DPA will be deemed to waive or
modify any of the provisions of the Agreement, which otherwise
remains in full force and effect. Specifically, nothing in this DPA
will affect any of the terms of the Agreement relating to
Upscope’s limitations of liability, which will remain in full force and
effect. Notwithstanding the foregoing, in no event shall either
Upscope Data Processing Addendum / November 2024 13
party exclude or limit its liability with respect to any data subject’s
rights under European Data Protection Legislation or the
Standard Contractual Clauses. If you have entered into more than
one Agreement with us, this DPA will amend each of the
Agreements separately. In the event of a conflict or inconsistency
between the terms of this DPA and the terms of the Agreement,
the terms of this DPA shall prevail. This DPA amends and
supersedes any prior data processing addendum or similar
agreement regarding its subject matter.
11. Change in Privacy Laws.
11.1. Notwithstanding anything to the contrary in the Agreement
(including this DPA), in the event of a change in Privacy Laws or a
determination or order by a supervisory authority or competent
court affecting this DPA or the lawfulness of any processing
activities under this DPA, we reserve the right to make any
amendments to this DPA as are reasonably necessary to ensure
continued compliance with European Data Protection Legislation
or compliance with any such orders.
Upscope Data Processing Addendum / November 2024 14
Standard Contractual Clauses
MODULE TWO: Transfer Controller to Processor
MODULE THREE: Transfer Processor to Processor
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 personal 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”)
(c)have agreed to these standard contractual clauses (hereinafter:
“Clauses”).
(d)These Clauses apply with respect to the transfer of personal data as
specified in Annex I.B.
(e)The Appendix to these Clauses containing the Annexes referred to
therein forms an integral part of these Clauses.
Upscope Data Processing Addendum / November 2024 15
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 - 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);
(iii) Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three:
Clause 9(a), (c), (d) and (e);
(iv) Clause 12 - Clause 12(a), (d) and (f);
Upscope Data Processing Addendum / November 2024 16
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 - 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 transfers
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.
Upscope Data Processing Addendum / November 2024 17
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.
MODULE TWO: Transfer Controller to Processor
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.
Upscope Data Processing Addendum / November 2024 18
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 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
Upscope Data Processing Addendum / November 2024 19
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
Upscope Data Processing Addendum / November 2024 20
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
Upscope Data Processing Addendum / November 2024 21
(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 (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:
(i) the onward transfer is to a country benefiting from an adequacy decision
pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward
transfer;
(ii) 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;
(iii) 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
(iv) 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
Upscope Data Processing Addendum / November 2024 22
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.
MODULE THREE: Transfer processor to processor
8.1 Instructions
(a)The data exporter has informed the data importer that it acts as
processor under the instructions of its controller(s), which the data
exporter shall make available to the data importer prior to processing.
(b)The data importer shall process the personal data only on documented
instructions from the controller, as communicated to the data importer
by the data exporter, and any additional documented instructions from
the data exporter. Such additional instructions shall not conflict with
the instructions from the controller. The controller or data exporter may
give further documented instructions regarding the data processing
throughout the duration of the contract.
(c)The data importer shall immediately inform the data exporter if it is
unable to follow those instructions. Where the data importer is unable
Upscope Data Processing Addendum / November 2024 23
to follow the instructions from the controller, the data exporter shall
immediately notify the controller.
(d)The data exporter warrants that it has imposed the same data
protection obligations on the data importer as set out in the contract or
other legal act under Union or Member State law between the
controller and the data exporter.
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 controller, as communicated to the data importer by
the data exporter, or 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 personal data, the data exporter may
redact part of the text of the Appendix 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.
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 rectify or erase 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
Upscope Data Processing Addendum / November 2024 24
services, the data importer shall, at the choice of the data exporter, delete all
personal data processed on behalf of the controller 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, they 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 subject. 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 or the controller. 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
Upscope Data Processing Addendum / November 2024 25
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 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, without undue delay, the data exporter and, where appropriate
and feasible, the controller 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 data
breach, including 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 its controller so that the
latter may in turn 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
Upscope Data Processing Addendum / November 2024 26
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 set out 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 controller, as communicated to the data
importer by the data exporter. In addition, the data may only be disclosed to a
third party located outside the European Union (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:
(a)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;
(b)the third party otherwise ensures appropriate safeguards pursuant to
Articles 46 or 47 of Regulation (EU) 2016/679;
(c)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
(d)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
Upscope Data Processing Addendum / November 2024 27
(a)The data importer shall promptly and adequately deal with enquiries
from the data exporter or the controller 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
controller.
(c)The data importer shall make all information necessary to demonstrate
compliance with the obligations set out in these Clauses available to
the data exporter, which shall provide it to the controller.
(d)The data importer shall allow for and contribute to audits by the data
exporter of the processing activities covered by these Clauses, at
reasonable intervals or if there are indications of non-compliance. The
same shall apply where the data exporter requests an audit on
instructions of the controller. In deciding on an audit, the data exporter
may take into account relevant certifications held by the data importer.
(e)Where the audit is carried out on the instructions of the controller, the
data exporter shall make the results available to the controller.
(f) 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.
(g)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
MODULE TWO: Transfer Controller to Processor
Upscope Data Processing Addendum / November 2024 28
(a)OPTION 2: GENERAL WRITTEN AUTHORISATION 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 thirty
(30) 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
Upscope Data Processing Addendum / November 2024 29
exporter shall have the right to terminate the sub-processor contract
and to instruct the sub-processor to erase or return the personal data.
MODULE THREE: Transfer processor to processor
(a)OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has
the controller’s general authorisation for the engagement of
sub-processor(s) from an agreed list. The data importer shall specifically
inform the controller in writing of any intended changes to that list
through the addition or replacement of sub processors at least thirty
(30) days in advance, thereby giving the controller 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 controller with the
information necessary to enable the controller to exercise its right to
object. The data importer shall inform the data exporter of the
engagement of the sub-processor(s).
(b)Where the data importer engages a sub-processor to carry out specific
processing activities (on behalf of the controller), 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 or controller’s
request, a copy of such a sub-processor agreement and any
subsequent amendments. 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
Upscope Data Processing Addendum / November 2024 30
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
MODULE TWO: Transfer Controller to Processor
(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.
MODULE THREE: Transfer processor to processor
(a)The data importer shall promptly notify the data exporter and, where
appropriate, the controller of any request it has received from a data
subject, without responding to that request unless it has been
authorised to do so by the controller.
(b)The data importer shall assist, where appropriate in cooperation with
the data exporter, the controller in fulfilling its obligations to respond to
Upscope Data Processing Addendum / November 2024 31
data subjects’ requests for the exercise of their rights under Regulation
(EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 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 controller, as
communicated by 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.
Upscope Data Processing Addendum / November 2024 32
(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.
Upscope Data Processing Addendum / November 2024 33
(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
Upscope Data Processing Addendum / November 2024 34
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.
MODULE TWO: Transfer Controller to Processor
Upscope Data Processing Addendum / November 2024 35
(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 (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. 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. 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.
MODULE THREE: Transfer processor to processor
(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). The data exporter shall forward the notification to the controller.
Upscope Data Processing Addendum / November 2024 36
(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 (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, 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 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
(a)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
Upscope Data Processing Addendum / November 2024 37
(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.
(Module 3: The data exporter shall forward the notification to the controller.)
(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 authorities, whether requests have
been challenged and the outcome of such challenges, etc.). (module 3:
The data exporter shall forward the information to the controller.)
(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 suspensory 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
Upscope Data Processing Addendum / November 2024 38
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. (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
(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:
Upscope Data Processing Addendum / November 2024 39
(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
(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.
(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
Upscope Data Processing Addendum / November 2024 40
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.
Upscope Data Processing Addendum / November 2024 41
Annex I
List of Parties
A. List of Parties
Data exporter(s):
Name: Customer (as defined in the DPA)
Address: Customer’s address (as provided by Customer in the Order
Form)
Contact person’s name, position and contact details: Customer’s
contact details (as provided by Customer in the Order Form or in their
Account Settings)
Role (controller/processor): Controller/processor
Data importer(s):
Name: Upscope (as defined in the DPA)
Address: Upscope’s address (as provided in the Master Services
Agreement)
Contact person’s name, position and contact details: Pardeep Kullar,
DPO, legal@upscope.com
Role (controller/processor): Processor
B. Data Processing Description
Upscope Data Processing Addendum / November 2024 42
Subject Matter: Upscope’s provision of the Software to Customer, and related
technical support.
Purpose of the Processing: Upscope will process personal data submitted to,
stored on, or sent via the Software for the purpose of providing the Service
and related technical support in accordance with this DPA.
Categories of Data Subjects: The personal data transferred concern the
following categories of data subjects:
● End users of the Service
● Individuals whose personal data is supplied by end users of the Service.
Categories of Personal Data: The personal data transferred concern the
following categories of data:
● Direct identifying information (e.g. name, email address, telephone)
● Indirect identifying information (e.g. job title, gender, date of birth)
● Device identification data and traffic data (e.g. IP addresses, MAC
addresses, web logs, browser agents)
● Any personal data supplied by end users of the Service
Sensitive Data: The personal data transferred to Upscope through the Service
is determined and controlled by Customer. As such, Customer controls the
content of the personal data transferred to Upscope and is solely responsible
for ensuring the legality of the categories of data it may choose to transfer to
Upscope. The DPA includes an express prohibition on the transfer of special
categories of personal data to Upscope.
Frequency of the Transfer: Continuous
Nature of the Processing: Upscope will perform the following basic
processing activities: processing to provide the Service in accordance with the
Agreement; processing to perform any steps necessary for the performance
of the Agreement; and processing to comply with other reasonable
instructions provided by Customer (e.g. via email) that are consistent with the
terms of the Agreement.
Upscope Data Processing Addendum / November 2024 43
Period for which the personal data will be retained: Throughout the
Subscription Term plus the period from expiry of the Subscription Term until
deletion of Personal Data by Upscope in accordance with the Agreement.
C. Competent Supervisory Authority
The Irish Data Protection Commissioner.
Annex II
Security Measures
Summary
We host our servers in highly secure, SOC 2 certified data centers and use the
latest security practices to protect our customers’ data. Our systems are
regularly tested using both automated systems and manual audits from
respected security firms.
Amazon Web Services (AWS) details
All personal data is stored in highly secure AWS data centers. AWS regularly
achieves third-party validation for thousands of global compliance
requirements that they continually monitor to help their customers meet
security and compliance standards. AWS supports security standards and
compliance certifications like PCI-DSS, HIPAA/HITECH, FedRAMP, GDPR, FIPS
140-2 and NIST 800-171. For a detailed overview of all security and privacy
measures, see the AWS Cloud Security page
(https://aws.amazon.com/security)
Upscope Data Processing Addendum / November 2024 44
AWS also has a dedicated Compliance Program which include certifications
and accreditations like CSA, ISO, SOC and more, as listed on their website
here: https://aws.amazon.com/compliance/programs.
Upscope security
● All our offices are equipped with CCTV and 24/7 security personnel and
access control.
● All actions performed by our employees on your account (such as
updating information, viewing your users when you request it for
testing, etc.) are monitored and logged.
● All our employees are background checked to the PCI DSS standard.
● Before our employees can perform any action on Upscope they need to
authenticate with two factor authentication.
● Our offices are fully ISO 27001 compliant and all our employees are
trained on data security regularly.
● Upscope undergoes regular audits and penetration testing.
Security the controller can implement
Further, our customers (the controllers) can enable 2FA on their account and
we allow for detailed user permissions so they can easily and efficiently
control who has access to each of their servers. We also support SAML-based
SSO.
Upscope Data Processing Addendum / November 2024 45
Annex III
Subprocessors
Name Address Description
Amazon Web Services 410 Terry Avenue North Cloud infrastructure
Seattle, WA 98109 services
United States
MongoDB, Inc 100 Forest Avenue Data storage services
Palo Alto, CA 94301
United States
Sentry, Inc 45 Fremont Street, 8th Cloud monitoring
Floor, San Francisco, CA
94105
Better Stack, Inc. 131 Continental Drive Cloud monitoring
Suite 305, Newark, DE
19713
Wildbit, LLC 12 Penns Trail, #521, Email delivery
(Postmark) Newtown, PA 18940
Upscope Data Processing Addendum / November 2024 46