EU DATA PROCESSING ADDENDUM

This Data Processing Addendum, including its Schedules and Appendices, (“DPA”) forms part of the Service Agreement, Terms or Use, Legal Policy, Privacy Policy, or other written or electronic agreement between NearMissTracker and Customer for the purchase or use of of NearMissTracker’s Website, Materials and Services (hereinafter referred to as the “Services”) as detailed in the agreement between the parties (the “Applicable Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.

By continuing to use the NearMissTracker, Near Miss Tracker and Check Flight Plan Websites and engaging with NearMissTracker personnel, the Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent NearMissTracker Processes Personal Data for which such Authorized Affiliates qualify, as the Controller.

In the course of providing the Services to Customer pursuant to the Applicable Agreement, NearMissTracker (which will henceforth be referred to as the “Processor”) may Process Personal Data on behalf of the Customer, and the parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

In accordance with applicable data protection laws, the Parties agree to the following concerning commissioned data processing. The provisions of this Addendum shall take precedence over any other terms between the Parties if and to the extent necessary to comply with applicable data protection laws. Capitalized terms used, but not defined, herein shall have the meanings set forth in the Agreement and / or Applicable laws.

  1. Definitions.

    1. “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of 50% or more of the voting interests of the subject entity or the ability to direct or control the management decisions of such entity.
    2. “Applicable Data Protection Laws” shall mean: (1) Directive on privacy and electronic communications 2002/58/EC, in as transposed into domestic legislation of each Member State of the European Economic Area and as amended, replaced or superseded from time to time; (2) the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR” and collectively with the foregoing “EU Data Protection Laws”), any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union (collectively the “UK Data Protection Laws” ); (3) (4) the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) and its implementing regulations (6) and the data protection or privacy laws and regulation of any other country without limitation as may be applicable to the relationship between the parties.
    3. “Controller” means (i) the person or entity which determines the purposes and means of the Processing of Personal Data, and (ii) a person or entity defined as a “Controller”, “Business” or similar terms under Data Protection Laws.
    4. “Customer” – Any Entity and/or its subsidiaries or affiliates that has a contractual relationship with NearMissTracker, or is a potential client, to acquire its Services.
    5. “Data Breach” means the actual or reasonably suspected theft, destruction, alteration, damage, loss, use, disclosure, or access to Personal Data that is unlawful, unauthorized, made by a person not authorized by Company to do so, that contravenes Company’s policies or procedures, or that violates this DPA or gives rise to a reporting obligation under Data Protection Laws.
    6. “Data Subject Request” means an actual or purported request, notice, or complaint from, or on behalf of, a Data Subject under Data Protection Laws.
    7. “EEA” means the European Economic Area.
    8. “EU”means the European Union.
    9. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
    10. “Process/Processing”, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Special Categories of Personal Data” shall have the same meaning that such term or substantially equivalent term may be defined in the Applicable Data Protection Laws.
    11. “Supervisory Authority” means a regulatory authority or governmental agency, including an independent public authority established pursuant to the GDPR.

  2. Details of the Data Processing.

    3. Processor shall Process the Controller’s Personal Data to carry out the Services as described in the Agreement. The duration of the data Processing shall be for the term of the Agreement. Processor shall Process all Controller Personal Data solely for purpose of carrying out the Services.

    1. The following types of Controller Personal Data may be Processed: names, addresses, email addresses, phone numbers, social media accounts, log-on credentials, IP addresses, cookies (including cookie ID), mobile advertising identifiers, statistical data, etc.
    2. The following categories of Data Subjects may be affected by the Processing: Controller’s potential clients, Controller’s end users, Controller’s customers, Controller’s employees, independent contractors, consultants or agent acting on behalf of the Controller’s interest.

  3. Processing on Instructions Only.

    1. Processor shall only Process Controller Personal Data within the scope of the Agreement and on documented instructions from Controller. Processor shall promptly inform Controller if, in its opinion, the execution of an instruction could infringe any applicable data protection laws.

  4. Obligation of Confidentiality.

    1. Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Controller Personal Data, ensuring in each case that access is limited to those individuals who need to know / access the relevant Controller Personal Data for the purposes of the Agreement and to comply with applicable laws, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

  5. Security Measures.

    1. Considering the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall, in relation to Controller Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk (collectively, the “Security Measures” ), including, as appropriate, the following measures:
    2. Pseudonymization and encryption of Controller Personal Data;
    3. Ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
    4. Ability to quickly restore the availability and access to Controller Personal Data in the event of a physical or technical incident;
    5. Maintain a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.
    6. Data Exporter agrees that those information security measures, and security measures that are detailed in ANNEX II are sufficient to its needs or obligations. If additional specific requirements are required by data exporter, it will notify data importer, in writing, of such requirements and provide data importer reasonable time to implement such requirements. The data exporter will bear any additional expenses incurred as a result of satisfying such specific requirements. Data importer has the right to reject implementation of the specific requirement if it already implemented a substitute or equivalent measure and or, according to its Information Security expert, this measure is not required
    7. Data Exporter is obligated to cooperate with data importer to use and implement any required Information Security measures or instructions to deliver it as required by the data importer in order to maintain the security of the data or the security of the data importer.

  6. Special Categories of Personal Data.

    1. Processor does not intend to Process special categories of Personal Data in connection with the Services. In the event that there is such Processing, the access to special categories of Personal Data will be restricted to staff that requires access to carry out their task who have been informed about the sensitivity of the Processing and the measures to be followed.

  7. Assistance with Safeguarding the Rights of Data Subjects.

    1. Processor shall reasonably assist Controller in safeguarding Data Subjects’ rights and fulfilling its obligations to respond to rectification, deletion or blocking requests from Data Subject’s as set forth under applicable law.
    2. The Parties agree that where the Services enable the Controller to view, edit, or delete the personal data, it will be obligated to use those functions in related to any Data Subject’s requests before reaching Processor. Processor shall not be liable or responsible for any usage of such functions.
    3. Where Processor receives any requests from Data Subject to exercise its right under the Applicable Data Protection Laws, Processor will promptly redirect the request to Controller. The Controller will do his best effort to provide public communication details to Data Subject to minimize and/or eliminate Data Subject’s request to Processor. Where the Controller failed to respond a request according the Applicable Data Protection Laws, the Processor shell have the right to respond the request without any responsibility and/or liability.

  8. Assistance with Ensuring Compliance with Art. 32 – 36 GDPR.

    1. Processor shall reasonably assist Controller in ensuring compliance with the obligations pursuant to Art. 32 – 36 GDPR, in particular with respect to the security of the Processing, data protection impact assessments and consultation of supervisory authorities. Upon written request, Processor shall provide Controller with the information required for the preparation of the list of Processing operations.

  9. Deletion and Return at the End of Processing.

    1. At Controller’s written request, upon the termination of the Services, Processor shall delete or return the Controller Personal Data, except to the extent applicable law requires Processor to retain the Controller Personal Data and for its legal defense, in which case Processor shall continue to maintain the confidentiality and security of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for its legal defense and consistent with the terms of this Addendum.

  10. Information to Demonstrate Compliance with Data Protection Obligations and Inspections.

    1. Processor shall make available to Controller information (including, for example, copies of its security assessments reflecting controls that have been implemented and relevant security policies) necessary to demonstrate compliance with its obligations under GDPR related to this Addendum, including its obligations to maintain the security of Controller Personal Data.

  11. Audits.

    1. Processor shall allow for and contribute to audits, including carrying out inspections conducted by Controller, or another auditor mandated by Controller that is subject to confidentiality, in order to establish the Processor’s compliance with this Addendum and the provisions of the applicable Data Protection Law as regards the Personal Data that Processor processes on behalf of Controller.

  12. Obligation to Notify Breaches.

    1. Processor shall notify the Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data and shall provide Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under applicable laws.

  13. Disclosure or Publication of Appropriate or Suitable Safeguards for Transfers to a Third Country.

    1. Unless otherwise prohibited in the Agreement, Controller agrees that in connection with the Services, Processor may transfer Controller Personal Data to a third country. Such transfers shall be made subject to safeguards no less protective of Controller Personal Data than those set forth herein, in ANNEX A below and accordance with applicable law, including the GDPR.

  14. Standard Contractual Clauses.

    1. If, in connection with the Processing of Controller Personal Data originating from the European Union, Switzerland and the United Kingdom, Processor will process the data outside of the European Economic Area, the parties agree to the terms of the controller to processor (Module 2) EU Standard Contractual Clauses effective as of 9/27/2021 for Transfer of Personal Data to Processors (the “Clauses”), with Controller (on behalf of itself and its Affiliates) designated as the “data exporter,” and Processor designated as the “data importer.” The Clauses including Annexes I and II are attached hereto as Exhibit A and Schedule 1 to Exhibit A and incorporated as part of this Addendum. The Standard Contractual Clauses shall prevail insofar as there is any conflict between the terms of this DPA and the Standard Contractual Clauses.

  15. Limitation of Liability.

    1. Each party’s and all its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘”Our Liability”’ section of the Applicable Agreement, and any reference in such section to the liability of a party means the aggregate.

  16. Conflict

    1. In the event of a conflict between the terms and conditions of this DPA and the Applicable Agreement, this DPA shall prevail. Except as set forth herein, all of the terms and conditions of the Applicable Agreement shall remain in full force and effect.

  17. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force.

    1. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX A
STANDARD CONTRACTUAL CLAUSES
SECTION I

Clause 1

Purpose and scope
Standard Contractual Clauses
  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
  2. The Parties:
    1. The natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
    2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

Clause 2

Effect and invariability of the Clauses
  1. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
  2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
  3. Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].

Clause 3

Third-Party Beneficiaries
  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);
    3. Clause 11 - Clause 11(a), (d) and (f);
    4. Clause 12;
    5. Clause 14.1(c), (d) and (e);
    6. Clause 15(e);
    7. Clause 17 Clause 17(a) and (b);
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation
  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 - Optional

Docking clause
  1. 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.
  2. 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.
  3. 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 organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions
  1. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
  2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

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

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the 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

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 organizational 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.
  2. 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 authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  3. 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.
  4. 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 (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third-party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

  1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
  2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
  3. the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
  4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

8.9 Documentation and compliance

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

Clause 9

Data subject rights

  1. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
  2. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 10

Redress

  1. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
  2. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
  3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
    1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  4. The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
  5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 11

Liability

  1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
  2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
  3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
  4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer, it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
  5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
  6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

Clause 12

Supervision

  1. The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
  2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

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

Clause 13

Local laws and practices affecting compliance with the Clauses

  1. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. 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;
    2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards4;
    3. any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
  3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
  4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third-country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
  6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational 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. 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 15(d) and (e) shall apply.
  7. As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

Clause 14

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

14.1 Notification

  1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
    1. 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
    2. 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.
  2. 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.
  3. 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.).
  4. 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.
  5. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 13(e) and Clause 15 to inform the data exporter promptly where it is unable to comply with these Clauses.

14.2 Review of legality and data minimization

  1. 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 13(e).
  2. 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.
  3. 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 15

Non-compliance with the Clauses and termination

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. 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;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. 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.
  4. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
  5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 16

Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).

Clause 17

Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of _______ (specify Member State).
  3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

ANNEX I

  1. LIST OF PARTIES

    2. Data exporter(s):

    Entity Name [Entity Name]
    Entity Address [Entity Address]
    Data Protection Officer / Contact or Representative [Contact Name] [Position] [Contact Details]
    Activities relevant to the personal data transferred Provision of Services pursuant to the Agreement and as described within Section 3 of the DPA
    Role Controller

    Data exporter(s):

    Entity Name NearMissTracker
    Data Protection Officer / Contact or Representative DPO [email protected]
    Activities relevant to the personal data transferred Provision of Services pursuant to the Agreement and as described within Section 3 of the DPA
    Role Processor

  2. DESCRIPTION OF TRANSFER

    3. Categories of data subjects whose personal data is transferred

    As stated within Section 5 of the DPA.

    Categories of personal data transferred

    As stated within Section 2 + 6 of the DPA.

    Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures
    As stated within Section 6 of the DPA

    The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

    As stated within Section 2+3 of the DPA.

    Nature of the processing

    As stated within Section 2 of the DPA.

    Purpose(s) of the data transfer and further processing

    As stated within Section 3 of the DPA.

    The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

    As stated within Section 9 of the DPA.

    For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

    As stated within section 3+5 of the DPA.

  3. COMPETENT SUPERVISORY AUTHORITY

    4. Identify the competent supervisory authority/ies in accordance with Clause 12.

    ANNEX II
    TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

    We implement security measures based on accepted industry standards, in order to keep your information secure and protected against loss, misuse, or modification.

    Our security measures include the following:

    • Data importer protect user data with multiple layers of security, including encryption technology such as: 256-bit AES encryption and is FIPS 140-2 compliant.
    • Proper key management, with Microsoft-managed keys and Azure Key Vault to help ensure that encryption keys are properly secured.
    • Server-side encryption that uses service-managed keys, customer-managed keys in Azure Key Vault, or customer-managed keys on customer-controlled hardware.
    • Processor that employs Secure Sockets Layer (SSL)/HTTPS technology, which encrypts information before it is sent over the Internet.
    • All users have their own database.
    • Data that is transmitted is always encrypted, both in-transit and at-rest, based on IEEE 802.1AE MAC Security Standards, which enables the use of industry-standard encrypted transport protocols, such as Transport Layer Security (TLS) and Internet Protocol Security (IPsec).

    Data Exporter agrees that those information security measures are sufficient to its needs or obligations. If additional specific requirements are required by data exporter, it will notify data importer, in writing, of such requirements and provide data importer reasonable time to implement such requirements. The data exporter will bear any additional expenses incurred as a result of satisfying such specific requirements. Data importer has the right to reject implementation of the specific requirement if it already implemented a substitute or equivalent measure and or, according to its Information Security expert, this measure is not required.

    Data exporter is obligated to cooperate with data importer to use and implement any required Information Security measures or instructions to deliver it as required by the data importer in order to maintain the security of the data or the security of the data importer.

Last updated: February 16th, 2025