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CLOSELY DATA PROCESSING AGREEMENT

This Data Processing Agreement (“DPA”) is entered into by and between the Client on behalf itself and its Affiliates (the “Client) and Esterson Limited, having business address at 75 Prodromou Avenue, Oneworld Parkview House, 4th floor, Nicosia 2063, Cyprus (the “Vendor”) on behalf of itself and its Affiliates. The Effective Date hereof shall be the first date when either the Client accepts the Closely Terms of Use (the “Agreement”) through the Website or the Client and Closely enter into the Purchase Order (“PO”). This DPA constitutes an integral part of the Agreement and the relevant PO and is hereby incorporated therein by reference. All the definitions have the same meaning as they are used in the Agreement and PO unless they are specially defined hereby.

  1. DEFINITIONS

    In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth opposite each one of them:

    1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of 75%;
    2. The terms, "Commission", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Special Categories of Data", "Process/Processing", "Controller", "Processor", and "Supervisory Authority" shall have the same meanings given to them in the GDPR (or where the same or similar terms are used under another applicable Data Protection Law, the meanings given to such terms under such Data Protection Law).
    3. "Client’s Personal Data" means any Personal Data processed by the Vendor on behalf of the Client pursuant to or in connection with the Vendor’s Services;
    4. “Sensitive Personal Data” is a subset of Personal Data, which due to its nature has been classified by applicable law or by the Client as deserving additional privacy and security protection. Sensitive Personal Data consists of, in particular:
      1. all government-issued identification documents and numbers (including US Social Security numbers, driver’s license numbers, and passport numbers);
      2. all financial information, including any consumer or spending habits, and any account numbers (bank and non-bank financial services account numbers, credit/debit card numbers, and other information if that information would permit access to a financial account);
      3. any Personal Data pertaining to the categories specified in Articles 9-10 of the GDPR;
      4. all employee, employment candidate and payroll information and data; and
      5. any other Personal Data designated by the Client as Sensitive Personal Data.
    5. "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State, and as amended, replaced, or supplemented, including its replacement by GDPR;
    6. "GDPR" means EU General Data Protection Regulation 2016/679 and any subsequent amendments, replacements, or supplements;
    7. “Standard Contractual Clauses” mean the Annex to the Commission Implementing Decision on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.
    8. "Sub Processor" means any third party engaged directly by the Vendor to process any the Client’s Personal Data pursuant to or in connection with the Vendor’s Services. The term shall not include employees or contractors of the Vendor;
    9. “Client” means the Client (as specified in the relevant Purchase Order), and any of its Affiliates;
    10. “Vendor’s Services” means any services provided by the Vendor to the Client, including any software or platform services, pursuant to the Agreement, Purchase Order, license, subscription, or other legal instruments;

  2. SCOPE OF PROCESSING

    1. The Vendor shall process the Client’s Personal Data as described herein. If the Client is an entity, set up outside the EEA, the Standard Contractual Clauses attached hereto as Appendix I applies. The Vendor shall process the Client’s Personal Data as a data Processor acting on behalf of the Client as the Controller of such Personal Data.
    2. The Client hereby instructs the Vendor to process the Client’s Personal Data only for the limited purposes of providing the Vendor’s Services to the Client. Under no circumstances shall the Vendor process any of the Client’s Personal Data for its own purposes, thereby becoming a data controller of such personal data itself.
    3. The Vendor shall only process the Client’s Personal Data in accordance with, (i) the terms of this DPA, (ii) the terms of the existing agreement between the Parties, (iii) solely on the Client’s documented instructions, unless processing is required by applicable laws, and (iv) in compliance with applicable laws, in particular EU Data Protection Laws and Standard Contractual Clauses attached hereto as Appendix I (if applicable).
    4. The Vendor shall notify the Client if the Vendor determines that it can no longer meet its obligations under this DPA. Notwithstanding anything contained in any agreement between the Parties, the Client reserves the right to forthwith terminate, without penalty, all engagements and agreements with the Vendor on receiving notification under this Clause.

  3. SUBPROCESSING

    1. The Vendor shall not subcontract any processing of the Client’s Personal Data to any third party without a prior written consent of the Client of each such subcontracting activity. Notwithstanding the foregoing, the Client authorizes the Vendor to engage a Sub Processor for the limited purposes of processing the Client’s Personal Data, only in the event that the Vendor:
      1. Provides to the Client at least 10 days prior written notice of its intention to engage or replace a Sub Processor. Such notice shall include at least: (i) the name of the Sub Processor; (ii) type of personal data processed; (iii) description of data subjects and (iv) location of the data processing;
      2. Ensures that the arrangement between the Vendor and the Sub Processor is governed by a binding contract, which requires a Sub Processor to process the Client’s Personal Data in accordance with this DPA, or standards that are no less onerous of this DPA.
    2. The Client may object to the engagement of any Sub Processor on any privacy or security grounds. In such a case, the Vendor shall not engage a Sub Processor for the provision of the Vendor’s Services to the Client.

  4. DATA TRANSFERS

    1. Except cases where the Personal Data Processing is carried out by the approved sub-processors, without the Client’s prior written consent, the Vendor may not transfer or permit the transfer of the Client’s Personal Data to any territory which is (i) outside the EEA and (ii) not recognized by the European Commission as providing an adequate level of data protection. Where the Client has permitted such a transfer, the Vendor or the Vendor’s Sub Processors must ensure that there is a legal basis for the transfer of said data, e.g. Standard Contractual Clauses or binding corporate rules, etc.
    2. By way of this DPA, the Client consents to the transfer of the Client’s Personal Data to the Vendor and each of the Sub Processors listed in ANNEX III – LIST OF SUB-PROCESSORS. Any transfer made under this DPA out of the EEA shall be governed by Standard Contractual Clauses, which shall be deemed incorporated by reference as an integral part of this DPA.

  5. VENDOR’S PERSONNEL

    1. The Vendor shall conduct an appropriate background investigation of all employees or contractors (the “Vendor’s Personnel”) of the Vendor who may have access to the Client’s Personal Data, prior to allowing them such access. If the background investigation reveals that the Vendor’s Personnel are not suited to access the Client’s Personal Data, then the Vendor shall not provide the Vendor Personnel with access to the Client’s Personal Data.
    2. The Vendor shall ensure that all the Vendor Personnel: (i) has such access only as necessary for the purposes of providing the Client Services and complying with applicable laws; (ii) is contractually bound to confidentiality requirements no less onerous than this DPA; and (iii) is provided with appropriate privacy and security training.
    3. Upon request, the Vendor shall provide to the Client a list of all individual employees and contractors (including former individual employees and contractors) who have (or have had) access to the Personal Data.

  6. SECURITY

    1. The Vendor shall assess and implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk presented by the processing of the Client’s Personal Data including:

      1. The pseudonymization and/or encryption of Personal Data, which in the case of any Sensitive Personal Data, shall be transmitted only via secured encrypted channels and in encrypted form;
      2. The ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services;
      3. The ability to restore the availability and access to the Client’s Personal Data in a timely manner in the event of a physical or technical incident; and
      4. A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.
    2. In assessing the appropriate level of technical and organizational measures, the Vendor shall take into account the risks that are presented by the Processing including the risks of Personal Data Breach, accidental or unlawful loss, destruction, alteration, unauthorized disclosure of or access to the Client’s Personal Data.

    3. The Vendor shall keep records of its processing activities performed on behalf of the Client, which shall include at least:

      1. The details of the Vendor as Personal Data Processor, any representatives, Sub Processors, data protection officers and the Vendor Personnel having access to the Client’s Personal Data;
      2. The categories of Processing activities performed;
      3. Information regarding cross-border data transfers, if any; and
      4. Description of the technical and organizational security measures implemented in respect of the processed Personal Data.

  7. DATA SUBJECT RIGHTS

    1. The Vendor shall reasonably assist the Client in responding to requests to exercise Data Subject rights under applicable laws, including EU Data Protection Laws.

    2. The Vendor shall:
      1. Promptly notify the Client if it receives a request from a Data Subject under EU Data Protection Laws in respect of the Client’s Personal Data; and
      2. Ensure that it does not respond to that request except on the documented instructions of the Client or as strictly required by applicable laws to which the Vendor is subject.


  8. LEGAL DISCLOSURE; PERSONAL DATA BREACH

    1. The Vendor shall notify the Client without undue delay and within 24 hours of the Vendor becoming aware of:
      1. any legally binding request for disclosure of the Client’s Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; and
      2. any actual or suspected Personal Data Breach affecting the Client’s Personal Data. The Vendor shall provide the Client with sufficient information to allow the Client to meet any obligations to report or inform Data Subjects or Supervisory Authorities of the Personal Data Breach under the applicable laws, including any information set out in Article 33(3) of the GDPR. Other than as required by law, the Vendor shall not make any public statements or other disclosures (including any communication to Data Subjects or Supervisory Authorities) about a Personal Data Breach affecting the Client’s Personal Data without the Client’s prior written consent, which is not provided through this DPA.
    2. The Vendor shall take any actions necessary to investigate any suspected or actual Personal Data Breach and prevent any further Personal Data Breach upon discovery of the same.
    3. The Vendor shall cooperate with the Client and take such steps as are directed by the Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
    4. The Vendor shall ensure that all the Vendor Personnel are informed of the confidential nature of the Client’s Personal Data, and are required to keep it confidential; have undertaken training related to handling Personal Data; and are aware of the Vendor's and their duties and obligations under this DPA.

  9. DELETION OR RETURN OF CLIENT’S PERSONAL DATA

    1. Upon expiration or termination of the provision of the Vendor’s Services, the Vendor shall promptly delete or return all copies of the Client’s Personal Data, at the Client’s choice, except as required to be retained in accordance with applicable law.
    2. Upon the Client’s prior written request, the Vendor Chief Privacy Officer or equivalent shall provide written certification to the Client that it has fully complied with this section.

  10. PROVISION OF INFORMATION

    1. The Vendor shall provide assistance to the Client with any data protection impact assessments, prior consultations with Supervisory Authorities or other competent data privacy authorities, which the Client reasonably considers to be required under applicable laws. The scope of such assistance shall be limited to the Processing of the Client’s Personal Data by the Vendor.

  11. MISCELLANEOUS

    1. Severance. Should any provision of this DPA be determined invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
    2. Notice. All notices required under this DPA shall be sent to the Vendor by email to: [email protected].
    3. Order of precedence. In the event of any conflict between the terms of this DPA and other documents binding on Parties, the terms of these documents will be interpreted according to the following order of precedence: (i) this DPA; and (ii) terms of the Agreement, orders, license, or subscription, pursuant to which the Vendor’s Services are provided.
    4. Governing Law and Jurisdiction. This DPA is governed by the law of the Agreement. Any dispute arising from this DPA shall be resolved by the courts in accordance with the Agreement.
    12. Duration and termination. The duration of this DPA shall correspond to the Client’s use of the Vendor’s Services.



ANNEX I

DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

audience selected and specified by Data Controller, who are subject to Data Controller’s marketing interest.

Categories of personal data transferred

the Business and Shared Data as defined in the https://closelyhq.com/pp/ Privacy Policy.

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

Not applicable

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

Episodically, as needed.

Nature of the processing

Collection, recording, organisation, structuring, storage, retrieval, and erasure

Purpose(s) of the data transfer and further processing

the provision of Closely services

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: the period of the Agreement. Closely shall be entitled to maintain the personal data following the termination of the main agreement for statistical and/or financial purposes provided that Closely maintains such personal data on an aggregated basis or otherwise after having removed all personally identifiable attributes from such personal data.

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

service providers and contractors (employees) of the data importer are allowed to process data so that Closely can perform the services.

The Client may only use the Closely Service to process personal data pursuant to a recognized and applicable lawful basis under the GDPR. The Customer shall provide Closely only with instructions that are lawful under the GDPR and would not cause Closely to breach the GDPR.

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

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.

Security Policies and Procedures. Closely maintains and implements security policies and procedures designed to ensure employees and contractors Process Personal Data in accordance with the SCCs.

Intrusion Prevention. Closely ensures that its security infrastructure is consistent with leading industry standards for virus protection, firewalls and intrusion prevention technologies to prevent any unauthorized access or compromise of Closely network, systems, servers and applications from unauthorized access. Security Awareness Training. Closely implements and maintains security awareness training regarding the handling and securing of confidential information and sensitive information such as Personal Data consistent with applicable law.

Physical Access Controls. Closely has established limits on physical access to information systems and facilities using physical controls (e.g., coded badge access) that provide reasonable assurance that access to data centers and offices is limited to authorized individuals.

Logical Access Controls. Closely ensures proper user authentication for all employees and contractors with access to Personal Data, including, without limitation, by assigning each employee/contractor unique access credentials for access to any system on which Personal Data Processed by Closely in accordance with this DPA can be accessed and prohibiting employees/contractors from sharing such access credentials. Closely restricts and tracks access to Personal Data Processed by Closely in accordance with this DPA to only those employees/contractors whose access is necessary to perform the services. Closely implements and maintains logging and monitoring technology to help detect and prevent unauthorized access attempts to networks and production systems. Closely conducts periodic reviews of changes affecting systems’ handling authentication, authorization, and auditing, and privileged access to production systems. Closely shall ensure that upon termination of any employee/contractor, the terminated employee’s access to any Personal Data Processed by Closely in accordance with this DPA on Closely’s systems will be immediately revoked.

Environmental Access Controls. Closely implements and maintains appropriate and reasonable environmental controls for data centers, such as air temperature and humidity controls, and appropriate protections against power failures. Disaster Recovery and Back-up Controls. Closely maintained: (i) periodic backups of production file systems and databases according to a defined schedule; and (ii) a formal disaster recovery plan for the production data center and conduct regular testing on the effectiveness of such plan.

Business Continuity and Cyber Incident Response Plan. Closely maintains business continuity and incident response plans to manage and minimize the effects of unplanned events (cyber, physical, or natural) (“Incident Response Plans”) that include procedures to be followed in the event of an actual or potential security breach or business interruption and which have a stated goal of resumption of routine services within thirty-six (36) hours of such an event. The Incident Response Plans shall require record keeping of root cause analysis and remediation efforts.

Storage and Transmission Security. Closely secures the transmission of all Personal Data Processed by Closely in accordance with this DPA and encrypts such data while in motion consistent with industry standards and at a minimum of 256-bit encryption.

Internal Audits. Closely regularly conducts internal security audits and shall contract annually for external security assessments and penetration tests of Closely systems including, without limitation, cloud architecture, business processes and procedures, access controls and encryption measures.

Risk Identification and Assessment. Closely implements and maintains a risk assessment program to help identify foreseeable internal and external risks to its information resources and to determine if existing controls, policies, and procedures are adequate.

Vendor and Services Providers. Prior to engaging new third-party contractors, service providers or vendors who will have access to Personal Data Processed by Closely in accordance with this DPA (collectively, “Vendors”), Closely shall conduct a risk assessment on Vendor’s data security practices. Closely shall conduct periodic Vendor reviews to ensure compliance with the terms of the SCCs.

Change and Configuration Management. Closely implements and maintains policies and procedures for managing changes to production systems, applications, and databases, including without limitation, processes for documenting testing and approval of changes into production, security patching, and authentication.

ANNEX III – LIST OF SUB-PROCESSORS

The Data Controller has authorised the use of the following sub-processors:

Appendix No 1 to the DPA: STANDARD CONTRACTUAL CLAUSES

SECTION I

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 I.A. (hereinafter each “data exporter”), and
    2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).
  3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  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.
  2. 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 - Clause 8.1 (b) and Clause 8.3(b);
    3. Clause 13;
    4. Clause 15.1(c), (d) and (e);
    5. Clause 16(e);
    6. Clause 18.
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4: Interpretation
  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5: Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6: Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Reserved as optional: Docking clause


SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8: Data protection safeguards
8.1 Instructions
  1. The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
  2. The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
  3. The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
  4. After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.
8.2 Security of processing
  1. The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature of the personal data[2], the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
  2. The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
  3. The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.3 Documentation and compliance
  1. The Parties shall be able to demonstrate compliance with these Clauses.
  2. The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.
Clause 9: Use of sub-processors
Article 3 of the DPA applies to cases of subprocessing.

Clause 10: Data subject rights
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.

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.
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. Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
  3. 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.
  4. The Parties agree that if one Party is held liable under paragraph (c), 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.
  5. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
Clause 13: Supervision
  1. 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.
  2. The Parties appoint the supervisory authority of Ireland as competent supervisory authority.


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];
    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. 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
15.1 Notification
  1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
    1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
    2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
  2. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
  3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
  4. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
  5. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
  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 collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof. 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 a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18: Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of Ireland.


ANNEX I: A. LIST OF PARTIES

Data exporter:
Name: Esterson Limited
Address: 75 Prodromou Avenue, Oneworld Parkview House, 4th floor, Nicosia 2063, Cyprus
Contact person’s details: [email protected]
Activities relevant to the data transferred under these Clauses: the provision of Closely’s services
Role: Data Processor

Data importer(s):
The Client, in accordance with the relevant PO and Agreement. Activities relevant to the data transferred under these Clauses: submitting personal data to Data importer/Processor by electronic means, without limitation, web interface, API, or other communication channels.
Role (controller/processor): Controller

B. DESCRIPTION OF TRANSFER
As spesified in Annex I.B. to the DPA.

C. COMPETENT SUPERVISORY AUTHORITY
As identified in Clause 13.



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

As spesified in Annex II to the DPA.


ANNEX III – LIST OF SUB-PROCESSORS

As spesified in Annex III to the DPA.

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