Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of the Avoma, Inc. (“Avoma”) Terms of Service (“Terms of Service”), or other agreement governing the use of Avoma’s services (“Agreement”) entered by and between you (“you”, “your”, “Customer”), and Avoma. This DPA sets out the terms that apply to the Processing of Personal Data (as defined below) by Avoma, on behalf of Customer, in the course of providing the Services to Customer under the Agreement.

1. Data Processing Terms

In the course of providing the Service to Customer pursuant to the Terms of Service, Avoma, Inc. may Process Personal Data on behalf of Customer. Avoma, Inc. agrees to comply with the following provisions with respect to Personal Data processed by Avoma, Inc. as part of the Service for Customer.

1.1 “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a party to the Terms of Service, where “control” means the ownership of a majority share of the voting stock, equity or voting interests of such entity.

1.2 “Avoma, Inc. Information Security Policy” means the information security documentation applicable to the specific Service purchased by Customer is updated from time to time, and made available by Avoma, Inc. upon request.

1.3 “Individual” means a natural person to whom Personal Data relates, also referred to as “Data Subject” pursuant to EU data protection Laws and regulations.

1.4 “Other Parties to the Call” – parties to Customer’s phone calls, video calls and online demos, other than Personnel.

1.5 “Personal Data” means data about an identified or identifiable Individual.

1.6 “Personnel” means the employees, agents, consultants, and contractors of Customer and Customer’s Affiliates.

1.7 “Privacy Laws and Regulations” means all US federal and state privacy laws and regulations and data protection laws applicable to the Processing of Personal Data under the Terms of Service.

1.8 “Data Privacy Framework” means the EU-US Data Privacy Framework, as administered by the U.S. Department of Commerce and approved by the European Commission.

1.9 “Data Privacy Framework Principles” mean the Data Privacy Framework Principles, as set forth at www.dataprivacyframework.gov.

1.10 “Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

1.11 “Service Notice” – means a clear written or recorded notice about the Service and Customer’s use thereof, which at a minimum provides that the Service is a speech analytics tool, it enables Customer to record, analyze and share for a limited period of time the recordings of phone calls, video calls and online demos (as applicable), including associated data and documentation (if applicable), and further includes information as required under the applicable law.

2. Data Processing

2.1 Scope and Roles. This DPA applies when Personal Data is Processed by Avoma, Inc., as further specified in the Terms of Service and the applicable Order Form. In this context, to the extent that EU Privacy Laws and Regulations apply to the Personal Data that Avoma, Inc. processes for Customer under the Terms of Service, Customer is the Data Controller and Avoma, Inc. and applicable Affiliates are the Data Processor under such laws and regulations.

2.2 Customer’s Processing of Personal Data. Customer’s instructions to Avoma, Inc. to Process Personal Data will comply with Data Protection Laws and Regulations. Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data, the means by which Customer acquired Personal Data, and Customer permissions to Process Personal Data pursuant to this DPA.

2.3 Instructions for Avoma, Inc.’s Processing of Personal Data. Avoma, Inc. will only Process Personal Data on behalf of and in accordance with Customer’s instructions. Customer instructs Avoma, Inc. to Process Personal Data for the following purposes: (i) Processing in accordance with the Terms of Service and applicable Order Forms; and (ii) Processing to comply with other reasonable instructions provided by Customer where such instructions are consistent with the terms of the Terms of Service and comply with applicable Privacy Laws and Regulations. Processing outside the scope of this DPA (if any) will require a prior written agreement between Avoma, Inc. and Customer on additional instructions for processing, including the agreement on any additional fees Customer will pay to Avoma, Inc. for carrying out such instructions.

2.4 Processing for Legitimate Purposes. Notwithstanding, Avoma, Inc. may Process Personal Information for legitimate business purposes, including archiving, back-up and disaster recovery, cyber security, operations, control, improvements and development of Avoma, Inc.’s Service, fraud and service misuse prevention and legal and administrative proceedings.

3. Rights of Individuals

3.1 Requests. Avoma, Inc. will, to the extent legally permitted, promptly notify Customer if it receives a request from an Individual, who’s Personal Data is included in Customer’s Personal Data, or a request by the Individual’s legal guardians, to exercise the right to access, correct, amend or delete Personal Data related to the Individual, or to exercise such other personal right that the Individual is entitled to pursuant the applicable Privacy laws and Regulations.

3.2 Assistance. Avoma, Inc. will provide Customer with commercially reasonable cooperation and assistance in relation to handling the Individual’s request, to the extent legally permitted and to the extent Customer does not have access to such Personal Data through its use of the Service. Except if not permitted under the applicable Privacy Laws and Regulations, Customer will reimburse Avoma, Inc. with any costs and expenses related to Avoma, Inc.’s provision of such assistance.

4. Avoma, Inc. Personnel

4.1 Limitation of Access. Avoma, Inc. will ensure that Avoma, Inc.’s access to Personal Data is limited to those personnel who require such access to perform the Terms of Service.

4.2 Confidentiality. Avoma, Inc. will impose appropriate contractual obligations upon its personnel engaged in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection and data security. Avoma, Inc. will ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training in their responsibilities, and have executed written confidentiality agreements. Avoma, Inc. will ensure that such confidentiality agreements survive the termination of the employment or engagement of its personnel.

5. Affiliates And Third-Party Service Providers

5.1 Affiliates. Some or all of Avoma, Inc.’s obligations under the Terms of Service may be performed by Avoma, Inc. Affiliates.

5.2 Agents. Customer acknowledges and agrees that: (i) Avoma, Inc.’s Affiliates may retain Process Personal Data on Avoma, Inc.’s behalf to perform the Service under the Terms of Service; and (ii) Avoma, Inc. and Avoma, Inc.’s Affiliates respectively may engage third-party service providers in the performance of the Service. All Affiliates and agents to whom Avoma, Inc. transfers Personal Data to provide the Service have entered into written agreements with Avoma, Inc. or other binding instruments that bind them by substantially the same material obligations under this DPA.

5.3 Liability. Avoma, Inc. will be liable for the acts and omissions of its Affiliates and agents to the same extent Avoma, Inc. would be liable if performing the Service of each Affiliate or agent directly under the terms of this DPA.

5.4 Consent. Customer consents to Avoma, Inc.’s use of Avoma, Inc. Affiliates and agents set forth on Annex 1 in the performance of the Service in accordance with the terms of this Section 5.  Avoma, Inc. will notify Customer at least thirty (30) days in advance of any changes to the Affiliates and agents used by Avoma in the processing of Personal Data.

5.5 Notification and Objection to New Sub-Processors. We will notify you of any changes to Sub-processors by updating Annex 4 to this DPA and will give you the opportunity to object to the engagement of the new Sub-Processor on reasonable grounds relating to the protection of Personal Data within 30 days after updating Annex 4 to this DPA. If you do notify us of such an objection, the parties will discuss your concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either not appoint the new Sub-Processor, or permit you to suspend or terminate the affected Subscription Service in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by you prior to suspension or termination).

6. Additional Terms For EU Personal Data

6.1 Avoma, Inc. self-certifies to and complies with the Data Privacy Framework and will maintain its self-certification to and compliance with the Data Privacy Framework throughout the terms of Terms of Service.

6.2 All Avoma, Inc. Affiliates and agents to whom Avoma, Inc. transfers Personal Data to provide the Service are certified to the Data Privacy Framework, or provide at least the same level of protection for the Personal Data as is required by the relevant principles of the Data Privacy Framework and comply with the requirements under the Data Privacy Framework for the onward transfer of Personal Data to agents.

6.3 Avoma, Inc. and its Affiliates and agents will take such measures to facilitate the lawful Processing of Personal Data by Avoma, Inc., and its Affiliates and agents in accordance with all applicable Privacy Laws and Regulations.

6.4: Customer authorizes the transfer of Personal Data to any jurisdiction outside the EEA, including the United States, for the purpose of providing the Service pursuant to the Data Controller to Data Processor EU Model Clauses that are incorporated by reference into this DPA and apply to any Personal Data transfers outside the EEA, including any onward transfers to Sub-processors, including the UK Addendum to the EU Model Clauses. Avoma, Inc. and its Affiliates and agents to whom Avoma, Inc. transfers Personal Data to provide the Services will comply with the EU Model Clauses in all respects, with Customer as the controller and Avoma, Inc. and its Affilites and agents as processors. 

7. Security

7.1 Controls. Avoma, Inc. will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer’s Personal Data, pursuant to the Avoma, Inc. Information Security Policy. Avoma, Inc. regularly monitors compliance with these safeguards. Avoma, Inc. will not materially decrease the overall security of the Service during the term of the Terms of Service.

7.2 Policies, Certifications and Audit Reports. Avoma, Inc. uses external auditors to verify the adequacy of its security measures. The internal controls of the Service are subject to periodic testing by such auditors. Upon Customer’s written request at reasonable intervals and subject to confidentiality limitations, Avoma, Inc. will make available to Customer that is not a Avoma, Inc. competitor (or to a third party auditor on Customer’s behalf, that is not a Avoma, Inc. competitor and subject to the auditor’s execution of Avoma, Inc.’s non-disclosure agreement), the then most recent version of the Avoma, Inc. Information Security Policy summaries of third-party audit or certification reports commonly made available to Avoma, Inc. Customers.

8. Security Breach Management and Notification

8.1 Breach prevention and management. Avoma, Inc. will maintain security incident management policies and procedures and will, to the extent permitted by law, promptly notify Customer, without undue delay, of any actual or reasonably suspected unauthorized access to, acquisition of, or disclosure of Customer Personal Data, by Avoma, Inc. or its Affiliates or agents of which Avoma, Inc. becomes aware (a “Security Incident”).

8.2 Remediation. To the extent that a Security Incident is caused by a violation of the requirements of this DPA by Avoma, Inc., Avoma, Inc. will make reasonable efforts to identify and remediate the cause of such Security Incident.

9. Customer Privacy Policy

Customer undertakes to provide adequate notices to Individuals about the Processing of their Personal Data pursuant to this DPA. 

10. Deletion and Retention of Personal Data

10.1 Data Deletion. Avoma, Inc. will return Customer Personal Data to Customer or delete such data within thirty (30) days after termination of the Services or sooner upon Customer’s request. At Customer’s request, Avoma, Inc. will state in writing that it has completed the deletion of the Customer Personal data from its systems.

10.2 Data Retention. Notwithstanding, Customer acknowledges and agrees that Avoma, Inc. may retain copies of Customer Personal Data as necessary in connection with its routine backup and archiving procedures and to ensure compliance with its legal obligations and its continuing obligations under the applicable law, including to retain data pursuant to legal requirements and to use such data to protect Avoma, Inc., its Affiliates, agents and any person on their behalf in court and administrative proceedings, and for investigations and inspections related to the use of Avoma, Inc.’s services.

11. Anonymized and Aggregated Data

Avoma, Inc. may process data based on extracts of Personal Data on an aggregated and non-identifiable forms, for Avoma, Inc.’s legitimate business purposes, including for testing, development, controls and operations of the Service, and may share and retain such data at Avoma, Inc.’s discretion, provided that any such data is incapable of identifying Customer and any data subject.

12. Limitation of Liability

Each party’s and its Affiliates’ liability arising out of or related to this DPA (whether in contract, tort or under any other theory of liability) is subject to the section ‘Limitation of Liability’ of the Terms of Service, and any reference in such section to the liability of a party means that party and its Affiliates in the aggregate.

13. Term

This DPA will commence on the same date that the Terms of Service are effective, and will continue until the Terms of Service are expired or terminated, pursuant to the terms therein.

14. Compliance

14.1 Avoma, Inc.’s compliance team is responsible to make sure that all relevant Avoma, Inc.’s personnel adhere to this DPA.

14.2 Avoma, Inc.’s compliance team can be reached at: security@avoma.com

Schedule 1 - Standard Contractual Clauses

SECTION I – STANDARD CONTRACTUAL CLAUSES

Clause 1: Purpose and scope

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

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

3. These Clauses apply with respect to the transfer of personal data as specified in Annex 2
4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2: Effect and invariability of the Clauses

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

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

Clause 3: Third-party beneficiaries

1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
   
   1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
   2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
   3. Clause 9(a), (c), (d) and (e);
   4. Clause 12(a), (d) and (f);
   5. Clause 13;
   6. Clause 15.1(c), (d) and (e);
   7. Clause 16(e);
   8. Clause 18(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 2.

Clause 7: 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 1.
2. Once it has completed the Appendix and signed Annex 1, 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 1.
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 organisational measures, to satisfy its obligations under these Clauses.

1. Instructions

1. 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.
2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

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 2, unless on further instructions from the data exporter.

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 2 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.

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.

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 2. 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).

6. Security of processing

1. 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 3. 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 authorised 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.

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 2.

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 defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

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.

Clause 9: Use of sub-processors

1. 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 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.
2. 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.
3. 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.
4. 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.
5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10: Data subject rights

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

Clause 11: Redress

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

1. 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.
2. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
2. refer the dispute to the competent courts within the meaning of Clause 18.

4. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12: Liability

1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its subprocessor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13: Supervision

1. Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex 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 Annex 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 Annex 2, shall act as competent supervisory authority.

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

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

Clause 14: Local laws and practices affecting compliance with the Clauses

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

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 authorising access by such authorities - relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. 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.

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

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.

1. 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.
2. 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.).
3. 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.
4. 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.

2. Review of legality and data minimisation

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 14(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 16: Non-compliance with the Clauses and termination

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

2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

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 17: Governing law

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

Clause 18: Choice of forum and jurisdiction

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

APPENDIX

Annex 1 – List of Parties

Data exporter(s):  

Name: The Customer, as defined in the Services Agreement.

Address: The Customer's address, as set out in the Services Agreement.

Contact person’s name, position and contact details: The Customer's contact details, as set out in the Services Agreement and/or as set out in the Customer’s Avoma Account.

Activities relevant to the data transferred under these Clauses: Processing of Personal Data in connection with Customer's use of the Avoma Subscription Services under the Avoma Terms of Service.

Role (controller/processor): Controller (either as the Controller; or acting in the capacity of a Controller, as a Processor, on behalf of another Controller)

Data importer(s): Avoma, Inc.

Contact person’s name, position and contact details: As detailed in the Agreement.

Activities relevant to the data transferred under these Clauses: Processing of Personal Data in connection with Customer's use of the Avoma Subscription Services under the Avoma Terms of Service.

Role (controller/processor): Processor 

Annex 2 – Details of Data Processing

This Annex 2 forms part of the Standard Contractual Clauses (the 'Clauses'). 

Defined terms used in this Appendix 1 shall have the meaning given to them in the Agreement (including the DPA).

Categories of data subjects whose personal data is transferred

You may submit Personal Data in the course of using Avoma Services, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

Your end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.

Categories of personal data transferred

You may submit Personal Data to Avoma Services, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data: 

1. Contact Information (as defined in the Terms of Service).

2. Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Service.

Sensitive data transferred (if applicable) and applied restrictions or safeguards

The processing of Sensitive Data is subject to the scope limitations, restrictions, and safeguards mutually agreed upon by the parties, as reflected in the Agreement.

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

Continuous.

Nature of the processing

Personal data will be subject to processing activities such as storing, recording, using, sharing, transmitting, analyzing, collecting, transferring, and making available personal data. 

Purpose(s) of the data transfer and further processing

We will Process Personal Data as necessary to provide the Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by you in your use of the Services.

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

Subject to the 'Deletion and Retention of Personal Data' section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

Competent Supervisory Authority

The competent supervisory authority is Ireland.

Annex 3 – Security Measures

This Annex 3 forms part of the Standard Contractual Clauses (the 'Clauses'). 

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

See https://www.avoma.com/security.

Annex 4 – List of Sub-Processors

4.1. Avoma may engage Sub-Processors to Process Personal Data on behalf of the Customer. Customer hereby provides Avoma with a general authorization to engage the Sub-Processors listed at https://trust.avoma.com/subprocessors. All Sub-Processors have entered into written agreements with Avoma that bind them by data protection obligations substantially similar to those under this DPA. Where a Sub-Processor fails to fulfil its data protection obligations in connection with the Processing of Personal Data under this DPA, Avoma will remain fully liable to Customer for the performance of that Sub-Processor’s obligations.

4.2. Avoma may engage with a new Sub-Processor (“New Sub-Processor”) to Process Personal Data on Customer’s behalf. Avoma’s webpage, accessible via https://trust.avoma.com/updates, offers a mechanism to learn new Sub-Processors. Avoma shall provide notification of any new Sub-Processor(s) before authorizing such new Sub-Processor(s) to Process Personal Data in connection with the provision of the Services. Customer may object to the Processing of Customer’s Personal Data by the New Sub-Processor, for reasonable and explained grounds, by providing a written objection to security@avoma.com within 5 business days following Avoma’s written notice to Customer of the intended engagement with the New Sub-Processor. If Customer timely sends Avoma a written objection notice, the parties will use good-faith efforts to resolve Customer’s objection. In the absence of a resolution, Avoma will use commercially reasonable efforts to provide Customer with the same level of service, without using the New Sub-Processor to Process Customer’s Personal Data.

Schedule 2 - UK Addendum

The Parties agree to and incorporate by reference the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf (“UK Addendum”).

• Table 1 is completed using the information set out in Annex 1 above.
• Table 2 is completed using the Standard Contractual Clauses above and the relevant information from Annex 2.
• Table 3 is completed using the information set out in Annex 1 and the relevant information from Annex 2.
• Table is 4 is completed so that either the data importer or data exporter may terminate the UK Addendum when the approved UK Addendum changes.

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