DPA | Binary Defense

Last Updated: July 25, 2024

This Data Protection Addendum (“Addendum”) reflects the parties’ agreement with respect to the Processing of Personal Information by Binary Defense Systems, Inc. (“Binary Defense”) on behalf of Client (as identified in the Agreement) in connection with the Services under the Agreement entered into between the parties. Any agreement, together with any non-disclosure agreements, amendments, exhibits, attachments, statements of work, purchase orders, work orders, quotations, schedules and other collateral documents already entered into between Client and Binary Defense (to the extent applicable) shall be referred to as the “Agreement(s)”. To the extent there is a conflict or inconsistency between the terms of this Addendum and the Agreement(s), this Addendum shall control. This Addendum shall only apply where this Addendum has been specifically incorporated into or linked to in the applicable Agreement.

This Addendum sets forth the terms and conditions relating to each party’s compliance with data privacy laws applicable to the Services provided under the Agreement(s), which may include (only to the extent applicable), the European General Data Protection Regulation the (“GDPR”) or the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) and/or any applicable data privacy law as may be applicable to the Services (collectively, the “Data Protection Laws”).

Definitions. If a term defined herein is already defined in the Agreement(s), the definition herein shall replace the definition in the Agreement(s). Capitalized terms used and not defined in this Addendum shall have the meaning ascribed to such term in the Agreement(s) or applicable Data Protection Laws if not defined herein or in the Agreement(s).
1. “Client Personal Information” means all Personal Information governed and/or regulated by Data Protection Laws, in any form or format, that Binary Defense Processes for or on behalf of Client pursuant to the Agreement(s) and the Services provided thereunder.
2. “UK Addendum” means the International Data Transfer Addendum issued by the United Kingdom Information Commissioners Office and laid before Parliament in accordance with s119A(1) of the Data Protection Act 2018 on 2 February 2022.
3. “Instructions” means the Agreement(s), this Addendum and any further written agreement between the parties regarding the Processing of Personal Information.
4. “Personal Information” means any information that identifies or locates a natural person (a “Data Subject”) or that, in combination with other data, can be used to identify or locate a natural person, including without limitation IP addresses, device identifiers, and other information collected by or stored in cookies and other tracking technologies, and, without limiting the foregoing, shall have the meaning as ascribed to it, or to a similar term (including, without limitation, “personal data”) under applicable Data Protection Laws.
5. “Personal Information Breach” means a confirmed unauthorized or unlawful disclosure of or access to Client Personal Information within Binary Defense’s possession or control.
6. “Process”, “Processing”, or “Processed” means any operation that is performed on Personal Information, whether done by automated means, or as it or a similarly equivalent term is otherwise defined under applicable Data Protection Laws.
7. “Standard Contractual Clauses” means the standard contractual clauses set out in the European Commission’s Decision 2021/914/EC of 4 June 2021, or any new or replacement Standard Contractual Clauses adopted by the European Commission for the transfer of Personal Information established in third countries.
8. “Services” shall have the same meaning as ascribed to it in the applicable Agreement.
9. “Sub-processor” means a subcontractor engaged by Binary Defense in its role of Processor who agrees to receive Client Personal Information exclusively intended for the Processing activities carried out on behalf of Client in accordance with the Agreement(s), including, without limitation, this Addendum.
10. “sale”, “sell”, or “selling” shall have the meaning as ascribed to it or to a similar term under applicable Data Protection Laws.
11. “cross-contextual behavioral advertising” shall have the meaning ascribed to them under applicable Data Protection Laws.
12. “Business”, “Controller”, “Processor”, “Contractor” and “Service Provider” shall have the meaning as ascribed to it or to a similar term under applicable Data Protection Laws.
Processing Purpose and Instructions; General Obligations. With respect to Binary Defense’s Processing of Client Personal Information pursuant to its provision of the Services to Client under the Agreement(s) and this Addendum:
1. The parties hereby agree that Client is the Business or Controller (as applicable), and Binary Defense is the Service Provider or Processor (as applicable) with respect to any Client Personal Information that Binary Defense Processes pursuant to the Agreement(s) and Services. Binary Defense will treat Client Personal Information as confidential and will only Process the Client Personal Information on behalf of and in accordance with the reasonable Instructions of Client and as reasonably necessary to use and provide the Services pursuant to the Agreement(s) (the “Business Purpose(s)”), unless such Processing is required by applicable law. Notwithstanding the foregoing, Client hereby agrees that Binary Defense shall be considered a Controller and Business with respect to Personal Information included within the Client’s business contact information and such other information used for billing and invoicing purposes (“Client Contact Information”). For clarity, this DPA does not apply to Client Contact Information, which Binary Defense can use for its own independent purposes pursuant to applicable law.
2. Binary Defense will ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential nature of the Client Personal Information and are subject to an obligations or duties of confidentiality as appropriate.
3. Binary Defense will not Process Client Personal Information outside of the direct relationship between Binary Defense and Client (which, for clarity, includes any Sub-processors that Binary Defense utilizes in connection with the Services). Binary Defense shall not sell or otherwise use the Client Personal Information for cross-contextual behavioral advertising, as such concepts are defined under applicable Data Protection Laws. Each party is and will comply with all Data Protection Laws applicable to their respective performance under this Addendum and the Agreement(s). If Binary Defense determines that it can no longer comply with the foregoing, it shall promptly provide notice to Client. Client represents and warrants that (i) its Instructions to Binary Defense are compliant with Data Protection Laws; (ii) Binary Defense’s Processing of Client Personal Information in compliance with the Agreement(s) and this Addendum will not violate applicable Data Protection Laws; and (iii) it has obtained all necessary consents and provided all necessary notices to applicable Data Subjects in order for Binary Defense to perform the Services as provided under the Agreement(s).
4. Binary Defense permits Client to take reasonable steps to stop and remediate any unauthorized use of the Client Personal Information, provided (i) Client gives Binary Defense no less than ten (10) days’ prior written notice thereof inclusive of a sufficient description as to what the remedial steps are, and (ii) that Binary Defense has not cured such unauthorized use within such ten (10) day period. Client acknowledges and agrees that if it suspends Binary Defense’s access to Client Personal Information then Binary Defense may not be able to fully provide the Services, and Client hereby waives any claim it may have against Binary Defense as a result of a failure to perform the Services due to such remedial efforts by the Client.
Information Security and Personal Information Breach.
1. Taking into account 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 Data Subjects, Binary Defense has implemented appropriate technical and organizational measures in accordance with industry standards that are designed to ensure a level of security appropriate to the risk.
2. In the event of a Personal Information Breach, Binary Defense will promptly (and in any event, within 48 hours after confirming the Personal Information Breach) notify Client of such Personal Information Breach. Binary Defense will provide Client with reasonably requested information about such Personal Information Breach (to the extent such information is known to Binary Defense) and, at Client’s expense, will provide Client with reasonably requested assistance in responding to a Personal Information Breach.
Data Subject Rights; Government Requests.
1. Binary Defense shall promptly notify Client if it receives a request from a Data Subject under any applicable Data Protection Laws with respect to the Client Personal Information (“Data Subject Request”) and Binary Defense will attempt to redirect the Data Subject Request to Client as applicable. Binary Defense shall cooperate and provide assistance as reasonably requested by Client (and at Client’s expense) to the extent necessary for Client to comply with a Data Subject Request.
2. Upon Client’s reasonable prior written request and taking into account the nature of the Processing under this Addendum, Binary Defense will provide reasonable assistance (at Client’s expense) to Client with regard to any Client Personal Information data protection impact assessment and prior consultations with supervising government authorities or other applicable government data privacy authorities.
Duration of Processing; Deletion and Return.
1. Upon termination of the Services and Client’s written request, Binary Defense shall, within a maximum of sixty (60) days and at Client’s option: (i) return to Client all Client Personal Information and all copies thereof by secure file transfer in a standard format (as determined by Binary Defense), or (ii) destroy and/or securely delete all other copies of Client Personal Information. Upon Client’s subsequent written request, Binary Defense shall provide, in each case, written certification to Client that it has complied fully with the foregoing.
2. Notwithstanding the foregoing, to the extent applicable law requires Binary Defense to keep and maintain Client Personal Information or the Client Personal Information is a part of Binary Defense’s regular back-up files and systems such Client Personal Information will be kept in accordance with the terms of this Addendum with the obligations set forth herein remaining in effect until such Client Personal Information is securely deleted or returned.
Sub-processors.
1. Client provides its general authorization to Binary Defense to disclose or transfer Client Personal Information to Sub-processors. Prior to any disclosure to a Sub-processor, Binary Defense shall enter into a written agreement with the Sub-processor that imposes substantially equivalent obligations on the Sub-processor as are set out in this Addendum. Binary Defense is responsible for its Sub-processors’ compliance with this Addendum.
2. Binary Defense will notify Client of an engagement of any new Sub-processors by updating the following webpage: https://www.binarydefense.com/terms/dpa/subprocessors . Client shall monitor the foregoing link of new Sub-processors that are engaged from time to time. Binary Defense will respond in good faith to any reasonable objections by Client, provided Client may only object to such new Sub-processors if there are reasonable grounds to believe that the Sub-processor will be unable to comply with the terms of this Addendum. If Client has a good faith objection to the engagement of a new Sub-processor, it must provide written notice of such objection setting forth the reasonable basis for the objection to Binary Defense within ten (10) days of receiving notice of the new engagement. The parties will work in good faith to resolve the objection, provided that if the parties are unable to resolve the objection within a reasonable period of time, Binary Defense may terminate the portion of the Services which cannot be provided without the new Sub-processor.
Data Protection Assessments and Audit.
1. Upon reasonable request and no more than once per calendar twelve (12) months, Binary Defense will provide Client with the information and records necessary to show Binary Defense’s compliance with this Addendum and applicable Data Protection Laws. The Client hereby agrees that Binary Defense’s provision of a valid Service Organization Controls 2 (SOC 2), Type II report certifying Binary Defense’s compliance thereof shall be sufficient to evidence compliance with the foregoing requirement.
2. Solely to the extent Binary Defense is unable to reasonably demonstrate its compliance by providing relevant certifications to Client, Binary Defense will, upon thirty (30) days prior written request from Client and no more than once per calendar twelve (12) month period, allow a qualified independent thirty-party auditor reasonably acceptable to Binary Defense (and subject to such third party’s entering into a confidentiality agreement) to audit Binary Defense’s policies, records, and information that relate to Binary Defense’s Processing of the Client Personal Information in order to examine Binary Defense’s compliance with this Addendum and applicable Data Protection Laws, provided that no such audit right shall extend to information about or relating to Binary Defense’s other clients. Any audit conducted pursuant to this Section shall be: (i) at Client’s cost and expense; (ii) during normal business hours; and (iii) and shall not unreasonably disrupt Binary Defense’s normal business operations. Any report, documents, information, or record provided to Client or created pursuant to this Section shall be considered confidential information.
Transfers of Personal Information
1. To the extent Binary Defense’s Processing of Client Personal Information includes transfers of Personal Information out of the European Economic Area (“EEA”), the parties, with effect from the commencement of the relevant transfer, hereby enter into the Standard Contractual Clauses (mutatis mutandis, as the case may be) in respect of any transfer (or onward transfer), unless an alternative transfer mechanism permitted by applicable Data Protection Law exists, in which case, the parties can mutually agree to such alternative mechanism in writing. If applicable, the Standard Contractual Clauses are entered into as set forth in Appendix 2.
2. To the extent Binary Defense’s Processing of Client Personal Information includes transfers of Personal Information out of the United Kingdom (“UK”), the parties, with effect from the commencement of the relevant transfer, hereby enter into the Standard Contractual Clauses (mutatis mutandis, as the case may be) and the UK Addendum in respect of any transfer (or onward transfer), unless an alternative transfer mechanism permitted by applicable Data Protection Law exists, in which case, the parties can mutually agree to such alternative mechanism in writing. If applicable, the Standard Contractual Clauses are entered into as set forth in Appendix 2 and the UK Addendum is entered into as set forth in Appendix 3.
Miscellaneous
1. For clarity, and notwithstanding anything to the contrary in the Agreement(s) or this Addendum, this Addendum shall not apply to any Personal Information that has been anonymized or aggregated, in compliance with applicable Data Protection Laws, such that it is no longer considered Personal Information as defined under applicable Data Protection Laws.
2. The parties agree that this Addendum shall terminate automatically upon the termination of the Agreement(s). Notwithstanding the foregoing, any obligations imposed on a party set forth in this Addendum in relation to the Processing of Client Personal Information shall survive any termination or expiration of the Agreement(s) and this Addendum.
3. Binary Defense’s obligations under this Addendum shall be subject to the limitations on liability set forth in the Agreement(s) (as applicable), including, without limitation, those limitations on the types or amounts of Binary Defense’s liability to Client set forth in the Agreement(s).
4. Notwithstanding anything else to the contrary in the Agreement(s), Binary Defense may periodically make modifications to this Addendum where necessary to (i) comply with a request or order by a supervisory authority or other government or regulatory entity; (ii) as may be required to comply with Data Protection Laws; or (iii) implement or adhere to new standard contractual clauses, approved codes of conduct or certifications, or other compliance mechanisms, which may be permitted under Data Protection Laws. Unless otherwise specified by Binary Defense, these changes will become effective for Client upon posting of the modified Addendum (see “Last Updated” date above). In any event, continued use of the Services will constitute Client’s acceptance of the version of the Addendum in effect.

Appendix 1

Details of Processing

Nature and Purpose of Processing: Binary Defense will Process Client Personal Information as necessary to provide the Services pursuant to the Agreement, as further specified in the SOW, and as further Instructed by Client and agreed by Binary Defense.
Duration of Processing: Subject to the Client’s right to request the deletion or return of Client Personal Information, Binary Defense will Process Client Personal Information for the duration of the Agreement, unless otherwise agreed in writing.
Categories of Data Subjects: Client may submit Client Personal Information of its employees, subcontractors, and third party partners and agents in the course of receiving and using the Services, the extent of which is determined and controlled by Client in its sole discretion.
Categories of Personal Information: Client may submit the following categories of Client Personal Information in connection with the Services: i: Contact Information (including, for example, first and last name, phone number, email address); and ii: other Client Personal Information submitted by, sent to, or received by Client, or Client’s end users, in connection with Services (including, for example, IP addresses, domain names, emails, log files and log data).
Special categories of data (if appropriate): The parties do not anticipate the transfer of special categories of data.
Processing operations:Client Personal Information may be subject to the following Processing activities: (i) Storage and other Processing necessary to provide, maintain and improve the Services provided to Client; and (ii) Disclosure in accordance with the Agreement and as compelled by applicable laws.
List of Sub-processors: https://www.binarydefense.com/terms/dpa/subprocessors

Appendix 2

Standard Contractual Clauses

Standard Contractual Clause Appendix: The Appendix to the Standard Contractual Clauses shall be deemed completed pursuant to the below table.

Applicable Module(s):	MODULE TWO: Transfer controller to processor
Clause 7 – Docking Clause:	MODULE TWO: No
For Modules Two and Three Clause 9 – Use of sub-processors	MODULE TWO: Option 2: General written authorisation, 10 days.
Clause 11 – Redress, independent dispute resolution body Option:	MODULE TWO: No
For Modules One, Two and Three Clause 13 – Supervision	MODULE TWO: Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Section 2(B) of this Appendix 2 shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Section 2(B) of this Appendix 2 shall act as competent supervisory authority. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Section 2(B) of this Appendix 2 shall act as competent supervisory authority.
Clauses 14 and 15	Not applicable
Clause 17 – Governing Law	MODULE TWO: Option 1: Ireland
Clause 18 – Choice of forum and jurisdiction	MODULE TWO: Irish Data Protection Commission

Annex I to the Standard Contractual Clauses: By signing the parties agree to also be bound by the UK Addendum to the EU Commission Standard Contractual Clauses attached hereto. Annex I to the Standard Contractual Clauses shall be deemed completed pursuant to the below table.

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name:	The Client identified in the Agreement(s)
Address:	As identified in the Agreement(s)
Contact person’s name, position and contact details:	As identified in the Agreement(s)
Activities relevant to the data transferred under these Clauses:	As set forth in Appendix 1.
Signature and date:	By transferring Personal Information from the EEA or the UK (as applicable) to the Data Importer, the Data Exporter will be deemed to have signed the Standard Contractual Clauses as set forth in this Appendix 2.
Role (controller/processor):	Controller

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name:	Binary Defense Systems, Inc.
Address:	600 Alpha Parkway, Stowe, OH 44224
Contact person’s name, position and contact details:	[email protected]
Activities relevant to the data transferred under these Clauses:	As set forth in Appendix 1.
Signature and date:	By receiving Personal Information from the EEA or the UK (as applicable) from the Data Exporter, the Data Importer will be deemed to have signed the Standard Contractual Clauses as set forth in this Appendix 2.
Role (controller/processor):	Processor

DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
Categories of personal data transferred	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
Sensitive data transferred (if applicable)	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
(For sensitive data only: 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 specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.)	N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
Nature of the processing	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
Purpose(s) of the data transfer and further processing	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period	As set forth in Appendix 1 of the Addendum to which these clauses are attached.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing	As necessary to provide the Services to the controller.

COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

Irish Data Protection Commission

Annex II to the Standard Contractual Clauses: Annex II to the Standard Contractual Clauses shall be deemed completed pursuant to the below.

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

Those measures described in the Agreement and as set forth in this Addendum

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter

As set forth herein.

Annex III to the Standard Contractual Clauses: Annex III to the Standard Contractual Clauses shall be deemed completed pursuant to the below table.

The controller has authorised the use of the following sub-processors: Those Sub-processors identified in Appendix 1.

Appendix 3

UK Addendum

This Appendix 3 shall apply to any transfer of Personal Information from a Data Exporter located in the United Kingdom, to a Data Importer located in a third country that is not deemed to offer adequately similar protection as provided under United Kingdom law.

TABLE 1: Parties

Start Date	The effective date of the Addendum to which this Appendix 3 is attached.
The Parties	Data Exporter	Data Importer
Parties’ Details	See Section 2 of Appendix 2 above	See Section 2 of Appendix 2 above
Key Contact	See Section 2 of Appendix 2 above	See Section 2 of Appendix 2 above
Signature	By transferring Personal Information from the UK (as applicable) to the Data Importer, the Data Exporter will be deemed to have signed this Appendix 3.	By Processing Personal Information from the UK received from the Data Exporter, the Data Importer will be deemed to have signed this Appendix 3.

TABLE 2: Selected SCCs, Modules, and Selected Clauses

UK Addendum to EU SCCs	☒The version of the approved EU SCCs which this UK Addendum is appended to, detailed below, including the Appendix Information: Date: Reference (if any): Other identifier (if any):
Module in Operation	Clause 7 (Docking Clause)	Clause 11 (Option)	Clause 9a (Prior Authorisation or General Authorisation)	Clause 9a (Time Period)
Module	N/A	N/A	N/A	N/A	N/A
1	N/A	N/A	N/A	N/A	N/A
2	N/A	N/A	N/A	N/A	N/A

TABLE 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this UK Addendum is set out in:

See Appendix 2 to the Addendum.

TABLE 4: Ending this UK Addendum when the Approved Addendum Changes

Neither party shall have the right to terminate this Appendix 3 in the event this Approved UK Addendum changes.

MANDATORY CLAUSES

Entering into this UK Addendum

Each Party agrees to be bound by the terms and conditions set out in this UK Addendum, in exchange for the other Party also agreeing to be bound by this UK Addendum.
Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this UK Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this UK Addendum. Entering into this UK Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this UK Addendum

Where this UK Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

UK Addendum	This International Data Transfer Addendum which is made up of this UK Addendum incorporating the UK Addendum EU SCCs.
UK Addendum EU SCCs	The version(s) of the Approved EU SCCs which this UK Addendum is appended to, as set out in Table 2, including the Appendix Information.
Appendix Information	As set out in Table 3.
Appropriate Safeguards	The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
Approved Addendum	The template UK Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.
Approved EU SCCs	The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
ICO	The Information Commissioner.
Restricted Transfer	A transfer which is covered by Chapter V of the UK GDPR.
UK	The United Kingdom of Great Britain and Northern Ireland.
UK Data Protection Laws	All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK.
UK GDPR	As defined in section 3 of the Data Protection Act 2018

This UK Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
If the provisions included in the UK Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this UK Addendum and the equivalent provision of the Approved EU SCCs will take their place.
If there is any inconsistency or conflict between UK Data Protection Laws and this UK Addendum, UK Data Protection Laws applies.
If the meaning of this UK Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, reenacted and/or replaced after this UK Addendum has been entered into.

Hierarchy

Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
Where there is any inconsistency or conflict between the Approved Addendum and the UK Addendum EU SCCs (as applicable), the Approved Addendum overrides the UK Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the UK Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
Where this UK Addendum incorporates UK Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this UK Addendum impacts those UK Addendum EU SCCs

Incorporation of and Changes to the EU SCCs

This UK Addendum incorporates the UK Addendum EU SCCs which are amended to the extent necessary so that: a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers; b. Sections 9 to 11 override Clause 5 (Hierarchy) of the UK Addendum EU SCCs; and c. this UK Addendum (including the UK Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
1. The following amendments to the UK Addendum EU SCCs (for the purpose of Section 12) are made:
2. References to the “Clauses” means this UK Addendum, incorporating the UK Addendum EU SCCs;
3. In Clause 2, delete the words: “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”;
4. Clause 6 (Description of the transfer(s)) is replaced with: “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
5. Clause 8.7(i) of Module 1 is replaced with: “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
6. Clause 8.8(i) of Modules 2 and 3 is replaced with: “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
7. References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
8. References to Regulation (EU) 2018/1725 are removed;
9. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
10. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
11. Clause 13(a) and Part C of Annex I are not used;
12. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
13. In Clause 16(e), subsection (i) is replaced with: “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
14. Clause 17 is replaced with: “These Clauses are governed by the laws of England and Wales.”;
15. Clause 18 is replaced with: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
16. The footnotes to the Approved EU SCCs do not form part of the UK Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this UK Addendum

The Parties may agree to change Clauses 17 and/or 18 of the UK Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
If the Parties wish to change the format of the information included in Part 1: Tables of the Approved UK Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
From time to time, the ICO may issue a revised Approved Addendum which: a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or b. reflects changes to UK Data Protection Laws; The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this UK Addendum including the Appendix Information. This UK Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the UK Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in: a its direct costs of performing its obligations under the UK Addendum; and/or b its risk under the UK Addendum, and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this UK Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
The Parties do not need the consent of any third party to make changes to this UK Addendum, but any changes must be made in accordance with its terms.