WPForms Data Processing Addendum

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA“) forms part of the Agreement between WPForms, LLC (“WPForms“) and [Customer Name] (“Customer“) and shall be effective on the date both parties execute this DPA (“Effective Date“). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

1. Definitions

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with an entity.

“Agreement” means WPForms’ Terms of Service, which govern the provision of the Services to Customer, as such terms may be updated by WPForms from time to time.

“Control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. “Controlled” is construed accordingly.

“Customer Data” means any Personal Data that WPForms processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.

“Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law and Non-EU Data Protection Laws.

“Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.

“Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.

“EU Data Protection Law” means all data protection laws and regulations applicable to Europe, including (i) the GDPR; (ii) Directive 2002/58/EC (ePrivacy); (iii) applicable national implementations of (i) and (ii); and (iv) UK data protection legislation following its withdrawal from the EU; and (v) any amendments and replacements thereof.

“EEA” means, for purposes of this DPA, the European Economic Area, United Kingdom, and Switzerland.

“Group” means any and all Affiliates that are part of an entity’s corporate group.

“Non-EU Data Protection Laws” means the California Consumer Privacy Act (“CCPA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Brazilian General Data Protection Law (“LGPD”), Federal Law no. 13,709/2018; the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”); and the South African Protection of Personal Information Act 4 of 2013 (“POPIA”).

“WPForms Network” means the WPForms data center facilities, servers, networking equipment, and host software systems that are within WPForms’ control and are used to provide the Services.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Processing” has the meaning given to it in the GDPR, and “process,” “processes,” and “processed” are interpreted accordingly.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.

“Services” means any product or service provided by WPForms to Customer pursuant to the Agreement.

“Standard Contractual Clauses” (“SCCs“) means Annex D attached to and forming part of this DPA.

“Sub-processor” means any Data Processor engaged by WPForms or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the WPForms Group.

2. Relationship with the Agreement

2.1 This DPA replaces any existing DPA the parties may have previously entered into in connection with the Services.

2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect.

2.3 If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict. Order of precedence: (i) SCCs; then (ii) this DPA; then (iii) the WPForms Terms of Service.

2.4 This DPA remains in effect for as long as WPForms carries out Customer Data processing operations on behalf of Customer, or until termination of the Agreement (and all Customer Data has been returned or deleted per Section 9.1).

2.5 Claims brought under this DPA are subject to the exclusions and limitations of liability set forth in the Agreement.

2.6 Claims against WPForms or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. Regulatory penalties incurred by WPForms arising from Customer’s failure to comply with its obligations under this DPA or applicable Data Protection Laws count toward and reduce WPForms’ liability under the Agreement.

2.7 No one other than a party to this DPA, its successors, and permitted assignees shall have any right to enforce its terms.

2.8 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

3. Scope and Applicability of this DPA

3.1 This DPA applies where and only to the extent WPForms processes Customer Data that originates from the EEA and/or is otherwise subject to EU Data Protection Law, as a Data Processor, in the course of providing Services under the Agreement.

4. Roles and Scope of Processing

4.1 Role of the parties. Customer is the controller of Customer Data; WPForms is a processor acting on Customer’s behalf, as further described in Annex A.

4.2 Prohibited data. Customer will not provide (or cause to be provided) any Sensitive Data to WPForms for processing under the Agreement, and WPForms will have no liability for Sensitive Data. This DPA does not apply to Sensitive Data.

4.3 Purpose limitation. WPForms shall process Customer Data only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes“). The Agreement and this DPA constitute Customer’s complete and final instructions; processing outside this scope requires prior written agreement.

4.4 Customer compliance. Customer represents and warrants that it has complied and will continue to comply with Data Protection Laws with respect to Customer Data and any instructions it issues to WPForms, and that it has obtained all consents and rights necessary for WPForms to process Customer Data for the purposes described in the Agreement and this DPA. Customer is solely responsible for the accuracy, quality, and legality of Customer Data and the means by which it was acquired.

4.5 Lawfulness of instructions. Customer will ensure WPForms’ processing per Customer’s instructions will not cause WPForms to violate Data Protection Laws. WPForms shall promptly notify Customer in writing if it becomes aware or believes any instruction violates the GDPR or its implementations.

4.6 Notwithstanding the foregoing, Customer acknowledges WPForms may use and disclose data relating to the operation, support, and/or use of the Services for its legitimate business purposes (billing, account management, technical support, product development, sales and marketing). To the extent this is Personal Data, WPForms is the Data Controller of it and processes it per the WPForms Privacy Policy and Data Protection Laws.

4.7 Tracking Technologies. Tracking Technologies. Customer acknowledges that in connection with the performance of the Services, WPForms employs the use of cookies, unique identifiers, web beacons and similar tracking technologies (“Tracking Technologies”). Customer shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable WPForms to deploy Tracking Technologies lawfully on, and collect data from, the devices of Subscribers (defined below) in accordance with and as described in the WPForms Privacy Policy.

5. Subprocessing

5.1 Authorized Sub-processors. Customer agrees WPForms may engage Sub-processors to process Customer Data on Customer’s behalf. The Sub-processors currently engaged and authorized are listed in Annex B.

5.2 Sub-processor obligations. WPForms shall: (i) enter into a written agreement with each Sub-processor imposing data protection terms requiring the Sub-processor to protect Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with this DPA and for any acts or omissions of the Sub-processor that cause WPForms to breach its obligations under this DPA.

5.3 WPForms shall (i) keep an up-to-date list of Sub-processors (Annex B) on its website; (ii) provide this list upon written request from Customer; and (iii) provide notice through this agreement that Customer is responsible for checking the website for updates or requesting an updated list.

5.4 Customer may object in writing to WPForms’ appointment of a new Sub-processor within five (5) calendar days of notice, on reasonable data-protection grounds. The parties shall discuss such concerns in good faith. If unresolved, Customer may suspend or terminate the Agreement (without prejudice to fees incurred prior to suspension or termination).

6. Security

6.1 Security Measures. WPForms shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Data from Security Incidents and preserve its security and confidentiality, per Annex C.

6.2 Confidentiality of processing. WPForms shall ensure any person authorized to process Customer Data is under an appropriate obligation of confidentiality (contractual or statutory).

6.3 Updates to Security Measures. Customer is responsible for independently assessing whether the Services meet its requirements and legal obligations. WPForms may update the Security Measures over time provided this does not degrade overall security.

6.4 Security Incident response. Upon becoming aware of a Security Incident, WPForms shall: (i) notify Customer without undue delay, and where feasible, no later than 48 hours from becoming aware; (ii) provide timely information as it becomes known or is reasonably requested; and (iii) promptly take reasonable steps to contain and investigate. Notification is not an acknowledgment of fault or liability.

6.5 Customer responsibilities. Customer is responsible for its secure use of the Services, including securing account credentials and the security of Customer Data in transit to and from the Services.

7. Security Reports and Audits

7.1 Audit rights. WPForms shall make available to Customer information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, exercised via the measures in 7.2–7.3 below.

7.2 Customer acknowledges that WPForms is regularly audited against SSAE 16 and PCI standards by internal auditors, respectively. Upon request, WPForms shall supply (on a confidential basis) a summary copy of its audit report(s) (“Report”) to Customer, so that Customer can verify WPForms’ compliance with the audit standards against which it has been assessed, and this DPA.

7.3 Security due diligence. Security due diligence. In addition to the Report, WPForms shall respond to all reasonable requests for information made by Customer to confirm WPForms’ compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to [email protected], provided that Customer shall not exercise this right more than once per calendar year.

8. International Transfers

8.1 Data center locations. WPForms may transfer and process Customer Data anywhere in the world where WPForms, its Affiliates, or Sub-processors maintain data processing operations, provided an adequate level of protection is maintained per Data Protection Laws and this DPA.

8.2 Alternative transfer mechanism. If WPForms adopts an alternative, compliant data export mechanism, that mechanism applies instead of the one described in this DPA, to the extent it satisfies EU Data Protection Law.

9. Return or Deletion of Data

9.1 Upon termination or expiration of the Agreement, WPForms shall, at Customer’s election, delete or return all Customer Data (including copies) in its possession or control, except to the extent applicable law requires retention, or for Customer Data archived on backup systems, which WPForms shall securely isolate, protect from further processing, and eventually delete per its deletion policies.

10. Cooperation

10.1 Data subject requests. The Services provide Customer, at no additional cost, with controls to retrieve, correct, delete, or restrict Customer Data to assist with its Data Protection Law obligations. WPForms shall, taking into account the nature of processing, provide reasonable additional assistance (at Customer’s expense) as needed. If a data subject request is made to WPForms directly, WPForms will not respond directly except to redirect the data subject to Customer, unless legally required, without Customer’s prior authorization.

10.2 Law enforcement requests. If a law enforcement agency demands Customer Data from WPForms, WPForms shall attempt to redirect the request to Customer, and if compelled to disclose, shall give Customer reasonable notice to allow it to seek a protective order, unless legally prohibited.

10.3 Data protection impact assessments. To the extent required, WPForms shall provide reasonably requested information to enable Customer to carry out DPIAs or prior consultations, via Section 7 compliance, the information in this DPA, and additional reasonable assistance (at Customer’s expense) if needed.

11. Limitation of Liability

11.1 Each party’s liability arising out of or related to this DPA (including the SCCs) is subject to the exclusions and limitations of liability set forth in the Agreement.

11.2 Claims against WPForms or its Affiliates under this DPA shall be brought solely by the Customer entity that is a party to the Agreement.

11.3 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.

IN WITNESS WHEREOF, the parties have caused this DPA to be executed by their authorized representative:

WPForms, LLC By:

Name: Zach Tirrell, General Manager

Date: September 4, 2026

[Customer Name] By: Name: [ ] Title: [ ] Date: [ ]

Annex A – Details of Data Processing

(a) Controller (data exporter): Customer, being a WPForms customer that has engaged WPForms to provide the Service under the Agreement.

(b) Processor (data importer): WPForms, LLC.

(c) Subject matter: The Customer Data.

(d) Duration of processing: Until termination of the Agreement, per Section 9 (Return or Deletion of Data).

(e) Purpose of processing: WPForms shall only process Customer Data for the Permitted Purposes: (i) as necessary to provide the Service under the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) to comply with other reasonable instructions consistent with the Agreement.

(f) Nature of the processing: WPForms provides form-building, form-submission-handling, and related plugin and software services, as more particularly described in the Agreement.

(g) Categories of data subjects: (i) Customers and Users (individuals accessing/using the Services through Customer’s account); and (ii) End Users — individuals who submit a form built using the Services, or whose information is otherwise stored on or collected via the Services.

(h) Types of Customer Data: Depending on the fields Customer configures, this may include: – Customers and Users: name, address, contact details, username, license key, payment/billing information (actual card data handled by the applicable payment processor, not stored by WPForms), site/technical environment details (WordPress version, PHP/MySQL version). – End Users: name, email address, phone number, IP address, free-text responses, file uploads, and payment-related tokens submitted through Customer-configured forms.

(i) Sensitive Data: WPForms does not intend to, nor does it intentionally, collect or process Sensitive Data in connection with the provision of the Service. Because form fields are configurable by Customer, Customer is responsible for not collecting Sensitive Data through the Services unless additional safeguards are in place.

(j) Processing Operations: Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities:

Disclosures in accordance with the Agreement and/or as compelled by applicable law.

Storage and other processing necessary to provide, maintain and improve the Service provided to Customer pursuant to the Agreement; and/or

Disclosures in accordance with the Agreement and/or as compelled by applicable law.

Annex B – List of WPForms Sub-processors

WPForms uses its Affiliates and a range of third-party Sub-processors to assist in providing the Services.

Entity Name

OpenAI, LLC

Cloudflare, Inc.

Google LLC (Google Cloud)

PlanetScale, Inc.

Functional Software, Inc. (Sentry)

Annex C – Security Measures

1 Information Security Program. WPForms will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the WPForms Network, and (c) minimize security risks, including through risk assessment and regular testing. WPForms will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:

1.1 Network Security. The WPForms Network will be electronically accessible to employees, contractors, and any other person as necessary to provide the Services. WPForms will maintain access controls and policies to manage what access is allowed to the WPForms Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. WPForms will maintain corrective action and incident response plans to respond to potential security threats.

1.2 Physical Security.

1.2.1 Physical Access Controls. Physical components of the WPForms Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.

1.2.2 Limited Employee and Contractor Access. WPForms provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of WPForms or its affiliates.

1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. WPForms also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion- detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.

2 Continued Evaluation. WPForms will conduct periodic reviews of the security of its Network and the adequacy of its information security program against industry standards, and will evaluate whether additional measures are needed in response to new risks.

Annex D – Standard Contractual Clauses as applied to Customers

SECTION I

Clause 1

Purpose and scope

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

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(d) 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

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

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

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 – Optional

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.

(b) 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.

(c) 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.

(d) 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

(a) The Parties shall implement appropriate technical and organizational 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, unauthorized 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, 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner.

(b) 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.

(c) The data exporter shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.3 Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) 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

Not applicable to MODULE FOUR.

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

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

Clause 12

Liability

Not applicable.

Clause 13

Supervision

Not applicable.

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

Clause 14

Local laws and practices affecting compliance with the Clauses

(where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

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

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i)the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii)the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii)any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by 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

(where the EU processor combines the personal data received from the third country-controller with personal data collected by the processor in the EU)

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary, with the help of the data exporter) if it:(i)receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii)becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimization

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:(i)the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii)the data importer is in substantial or persistent breach of these Clauses; or
(iii)the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data 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.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other 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 the United States of America.

Clause 18

Choice of forum and jurisdiction

Any dispute arising from these Clauses shall be resolved by the courts of the United States of America.