Attachment 1 to the SaaS Services Agreement ("Attachment 1”)Processing in accordance with Article 28 General Data Protection Regulation (GDPR) 

1. Subject matter and duration of the Contract.

1.1 Subject matter. For purposes of this Attachment 1, Black Crow may be referred to as “Processor” and Customer may be referred to as “Controller.”  The Subject matter of the Contract results from the Agreement which is referred to hereinafter as the “Service Agreement.” 

1.2 Duration. The duration of this Contract corresponds to the duration of the Service Agreement.


2. Specification of Contract Details.


2.1 Nature and Purpose of the intended Processing of Data. The Nature and Purpose of Processing of personal data by Black Crow for Customer are defined in the Service Agreement. The Processing of Data shall be carried out exclusively within a Member State of the European Union (EU) or within a Member State of the European Economic Area (EEA). Each and every Transfer of Data to a State which is not a Member State of either the EU or the EEA requires the prior agreement of Customer and shall only occur if the specific Conditions of Article 44 et seq. GDPR have been fulfilled. Customer hereby agrees Black Crow may transfer Personal Data from the UK, EU or EEA into the U.S. pursuant to the Standard Contractual Clauses.


2.2 Type of Data. The Subject Matter of the processing of personal data comprises IP addresses and pseudonymous online identifiers provided by Customer. Online user activity from Customer’s online properties, associated with these IP addresses and online identifiers, is also processed.


2.3 Categories of Data Subjects. The category of data subjects is online users.


3. Technical and Organizational Measures.


3.1 Before the commencement of processing, Black Crow shall document the execution of the necessary Technical and Organizational Measures. Insofar as the inspection/audit by Customer shows the need for amendments, such amendments shall be implemented by mutual agreement.


3.2 Black Crow shall establish data security and measures that guarantee a protection level appropriate to the risk concerning confidentiality, integrity, availability and resilience of the systems. 


4. Rectification, restriction and erasure of data.


Black Crow may not, on its own authority rectify, erase or restrict the processing of data that is being processed on behalf of Customer, other than on instructions from Customer. Insofar as a Data Subject contacts Black Crow directly concerning a rectification, erasure, or restriction of processing, Black Crow will forward the Data Subject’s request to Customer.


5. Quality assurance and other duties of Black Crow.


In addition to complying with the rules set forth in this Contract, Black Crow shall comply with the statutory requirements referred to in Articles 28 to 33 GDPR; accordingly, Black Crow ensures, in particular, compliance with the following:


  1. As Black Crow is established outside the EU & EEA it designates the following Representative within the Union pursuant to Article 27 ¶ 1 GDPR: 

ePrivacy GmbH / Prof. Dr. Christoph Bauer

Grosse Bleichen 21, 20354 Hamburg

+49 (0) 609451 810 / datenschutz@eprivacy.eu


  1. Confidentiality in accordance with Article 28 ¶ 3 Sentence 2 Point b, Articles 29 and 32 ¶ 4 GDPR. Black Crow entrusts only such employees with the data processing outlined in this contract who have been bound to confidentiality and have previously been familiarized with the data protection provisions relevant to their work. Black Crow and any person acting under its authority who has access to personal data, shall not process that data unless on instructions from Customer, which includes the powers granted in this Contract, unless required to do so by law.


  1. Customer and Black Crow shall cooperate, on request, with the supervisory authority in performance of its tasks.


  1. Customer shall be informed immediately of any inspections and measures conducted by the supervisory authority, insofar as they relate to this Contract. 


  1. Insofar as Customer is subject to an inspection by the supervisory authority, an administrative or summary offence or criminal procedure, a liability claim by a Data Subject or by a third party or any other claim in connection with the data processing by Black Crow, Black Crow shall reasonably support Customer.


  1. Black Crow shall periodically monitor the internal processes and the Technical and Organizational Measures to ensure that its processing is in accordance with the requirements of applicable data protection law.


6. Subcontracting.


6.1 Subcontracting for the purpose of the Service Agreement is to be understood as meaning services which relate directly to the provision of the principal service. This does not include ancillary services, such as telecommunication services, postal/transport services, maintenance and user support services or the disposal of data carriers, as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing equipment. Black Crow shall be obliged to make appropriate and legally binding contractual arrangements and take appropriate inspection measures to ensure the data security of Customer's data, even in the case of outsourced ancillary services.


6.2  Black Crow may commission subcontractors only after prior explicit written or documented consent from Customer. Customer agrees to the commissioning of the following subcontractors on the condition of a contractual agreement in accordance with Article 28 ¶ 2-4 GDPR: See Exhibit B.

Outsourcing to additional subcontractors or changing the existing subcontractor are permissible when:


  • Black Crow submits such outsourcing to a subcontractor to Customer in writing or in text form with appropriate advance notice; 


  • Customer has not objected to the planned outsourcing in writing or in text form by the date of handing over the data to Black Crow; and


  • The subcontracting is based on a contractual agreement in accordance with Article 28 ¶ 2-4 GDPR.


7. Supervisory powers of Customer.


7.1  Customer has the right, after consultation with Black Crow, to carry out inspections or to have them carried out by an auditor to be designated in each individual case. 


7.2  Black Crow shall ensure that Customer is able to verify compliance with the obligations of Black Crow in accordance with Article 28 GDPR. 


7.3  Black Crow may claim remuneration for enabling Customer inspections. 


8. Communication in the case of infringements by Black Crow.


8.1 Black Crow shall assist Customer in complying with the obligations concerning the security of personal data, reporting requirements for data breaches, data protection impact assessments and prior consultations, referred to in Articles 32 to 36 of the GDPR. These include:


  1. Ensuring an appropriate level of protection through Technical and Organizational Measures that take into account the circumstances and purposes of the processing as well as the projected probability and severity of a possible infringement of the law as a result of security vulnerabilities and that enable an immediate detection of relevant infringement events.


  1. The obligation to report a personal data breach promptly to Customer. 


  1. The duty to assist Customer with regard to Customer’s obligation to provide information to the Data Subject concerned and to immediately provide Customer with all relevant information in this regard.


  1. Supporting Customer with its data protection impact assessment 


  1. Supporting Customer with regard to prior consultation of the supervisory authority 


8.2 Black Crow may claim compensation for support services which are not included in the description of the services and which are not attributable to failures on the part of Black Crow. 


9. Authority of Customer to issue instructions.


9.1 Customer shall immediately confirm oral instructions (at the minimum in text form). 


9.2 Black Crow shall inform Customer immediately if it believes an instruction violates Data Protection Regulations. Black Crow shall then be entitled to suspend the execution of the relevant instructions until Customer confirms or changes them.

 

10. Deletion and return of personal data.


10.1 After conclusion of the Service Agreement, or earlier upon request by Customer, Black Crow shall give to Customer or – subject to prior consent – destroy all documents, processing and utilization results, and data sets related to the contract that have come into its possession, in a data-protection compliant manner. 


10.2 Documentation which is used to demonstrate orderly data processing in accordance with the Service Agreement shall be stored beyond the contract duration by Black Crow in accordance with the respective retention periods. It may hand such documentation over to Customer at the end of the contract duration to relieve Black Crow of this contractual obligation.


11. Geographic Scope.


This Attachment 1 applies to the processing of personal data of only those data subjects who are in the European Union.




Exhibit A – Standard Contractual Clauses


For the purposes of the GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. Customer shall be deemed the data exporter and Black Crow AI, 447 Broadway, 2nd Floor #382, New York, NY 10013, USA, Tel.: +1 (646) 358-1234; e-mail: privacy@blackcrow.ai.com shall be deemed the data importer; each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

 

SECTION I

Clause 1

Purpose and scope 

  1. The purpose of these 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. Customer (hereinafter “data exporter”), and
  2. Black Crow (hereinafter “data importer”)

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

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

 

Definitions


For the purposes of the Clauses:

 

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;


(b) 'the data exporter' means Controller and any Controller affiliate;


(c) 'the data importer' means Processor and any Processor affiliate;


(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;


(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;


(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.





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. 

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

 

The details of the processing and in particular the special categories of personal data where applicable are specified in Annex II which forms an integral part of the Clauses.

 

Clause 3

Third-party beneficiary clause


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:

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

(b) Clause 8.1(b), 8.9(a), (c), (d) and (e);

(c) Clause 9(a), (c), (d) and (e); 

(d) Clause 12(a), (d) and (f);

(e) Clause 13;

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

(g) Clause 16(e); and

(h) Clause 18(a) and (b).


2. Section 1 of this Clause 3 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.

(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

Not Applicable

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. 

8.1 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. 

8.2 Purpose limitation

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

8.3 Transparency 

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.  

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a). 

8.6 Security of processing

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and 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 II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security. 
  2. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons 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.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if: 

  1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer; 
  2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
  3. the onward transfer is necessary for the establishment, exercise or 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.

8.9 Documentation and compliance

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses. 
  2. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
  3. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.   
  4. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice. 
  5. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors


  1. The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least five (5) business days prior to the engagement of the  sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
  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 II 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. 
  2. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.   
  3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to: 
  1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
  2. refer the dispute to the competent courts within the meaning of Clause 18.
  1. 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. 
  2. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  3. 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 sub-processor) 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 I.C, 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 I.C, 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 I.C, shall act as competent supervisory authority. 

  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.


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.
  1. 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.
  2. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  3. 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). 
  4. 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

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.
  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.

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.

(d) 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. 

  1. 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. 
  2. 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 the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of France.  

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 France.
  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.


ANNEX I

A. LIST OF PARTIES

 Data exporter. The data exporter is: Customer is the data exporter; the nature and purpose of processing of personal data by the data importer for the data exporter are defined in the Service Agreement.


Data importer. The data importer is: Black Crow is the data importer; the nature and purpose of processing of personal data by data importer for the data exporter are defined in the Service Agreement.


Data subjects. The personal data transferred concern the following categories of data subjects: Data Exporter’s online visitors. 


Categories of data/ The personal data transferred concern the following categories of data: Personal Data collected includes, but is not limited to, IP addresses, pseudonymous online identifiers provided by Customer, and online user activity associated with these IP addresses and online identifiers.


Special categories of data (if appropriate). The personal data transferred concern the following special categories of data: N/A


Processing operations. The personal data transferred will be subject to the following basic processing activities: Processing activities are set forth in the Service Agreement between the data exporter and data importer.


B. DESCRIPTION OF TRANSFER

Data subjects. The personal data transferred concern the following categories of data subjects: Data Exporter’s online visitors. 


Categories of data/ The personal data transferred concern the following categories of data: Personal Data collected includes, but is not limited to, IP addresses, pseudonymous online identifiers provided by Customer, and online user activity associated with these IP addresses and online identifiers.


Special categories of data (if appropriate). The personal data transferred concern the following special categories of data: N/A


Processing operations. The personal data transferred will be subject to the following basic processing activities: Processing activities are set forth in the Service Agreement between the data exporter and data importer.


C. COMPETENT SUPERVISORY AUTHORITY

As Black Crow is established outside the EU & EEA it designates the following Representative within the Union pursuant to Article 27 ¶ 1 GDPR: 


ePrivacy GmbH / Prof. Dr. Christoph Bauer

Grosse Bleichen 21, 20354 Hamburg

+49 (0) 609451 810 / datenschutz@eprivacy.eu

ANNEX II 


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

System Access Control (Application Security)

  • A process for the application, approval, allocation and resetting of means of authorization and access is established, described and in use
  • Authorized individuals can only access data that is established in their individual authorization profiles    
  • Data is transmitted to and from Black Crow applications over end-to-end TLS
  • Access to the application cloud is limited to the Black Crow VPN, so users authenticating to the application must first authenticate to either the VPN server with individual login credentials
  • Corporate wireless network access requires individual user network login
  • VPN network access requires individual login credentials and multi-factor authentication
  • Both successful and unsuccessful attempts to access the Black Crow network are logged
  • VPN passwords have a minimum character limit of 7
  • VPN network access attempts timeout after 60 seconds
  • VPN network access blocked after 7 unsuccessful attempts
  • VPN network access connections timeout after 3 hours of idle time
  • Access to the application cloud is based on predefined roles
  • Access to the Black Crow VPN server is controlled by two state-of-the-art firewall and intrusion detection systems, which update their threat signatures in real-time multiple times per hour


Data Access Control & Transfer Control (Database Security)

  • All cloud data is stored virtually with the highest-grade data center security (Google and Amazon)
  • Access to partner data is restricted to only employees of Black Crow that need read access to the data to perform their job function
  • All employees are required to store their credentials in a secure location
  • Employees no longer with Black Crow are revoked access upon separation
  • Database user activity is logged and stored for at least 18 months


Separation Control

  • Regulations and norms exist regarding programming (e.g. separate test and live systems)
  • Regulations and norms exist regarding system and program testing
  • Separate processes exist for processing (saving, changing, deleting, transferring) and storage of data
  • "Coordinator" systems that orchestrate actions are separate from "control" systems that control and operate a single device/machine.
  • Job descriptions exist, which define each employee's role


Pseudonymization of Data

Psuedonymous digital identifiers are stored as 16- or 32-digit, random hexadecimal or decimal strings, with no practical way to identify the individual except a manual inspection of the user's physical device.  


Input Control

  • Permissions input, change and delete data are made based on specific user roles and permissions
  • Inputs of data are made automatically. Deletions are made automatically after the data retention period as defined in the privacy policy. Changes are not made. Any additional manual deletions are logged.
  • Transparency of the input, changing and deletion of data is made by individual usernames (not user groups)


Availability & Resistance: Further Measures via AWS

  • Backups of critical data are performed instantaneously through data redundancy. Timely secondary backups are also kept for maintenance or emergency needs
  • Cloud-based data backups are stored in data safes protected from fire and water
  • There are regular controls of the condition and labeling of key, cloud-based data storage devices
  • There is permanent monitoring of cloud-based production systems
  • Cloud-based devices are monitored for temperature and humidity in server rooms
  • Fire and smoke alarms are installed in cloud-based server rooms


Privacy Management

  • An external data protection officer has been appointed who is closely involved in the development of all processes relating to the relevant data protection requirements.
  • Staff are obliged to maintain confidentiality regarding data
  • TOMs are reviewed regularly and updated appropriately


Incident Response Management

If a data breach occurs, there are rules as to which processes should be initiated in this case, and in which form the supervisory authorities should be informed. In Incident Response process, the areas of responsibility have been determined, the technical procedure for rectifying the data breach has been defined, and the communication path to the supervisory authorities has been described, so that the supervisory authorities can be informed within 72 hours without any problems arising.


Data protection-friendly default settings

During the development of any technology or any new product, Black Crow has taken data privacy into account in the design approach right from the start. Our goal is to minimize the quantity of personal data to be collected and to reduce the scope of data processing. As part of this we stay away from any non-pseudonymous data other than IP addresses, and we avoid collecting sensitive data. Easily accessible data protection policies ensure transparency.


Job Control

  • Data processors are vetted to ensure that they comply with GDPR standards
  • Effective rights of control are agreed upon with data processor
  • The relevant technical and organizational measures of data processors are analyzed and evaluated and are regularly checked when required.

ANNEX III: Authorized Sub-Processors


Controller acknowledges and agrees that the following entities shall be deemed Authorized Sub-Processors that may Process Personal Data pursuant to this Attachment 1:

Black Crow

Address / Country

Service

Amazon Web Services, Inc.

P.O. Box 81226, Seattle, WA 98108-1226 USA

Cloud Services

Snowflake Computing, Inc.

100 South Ellsworth Avenue, Suite 100, San Mateo, CA USA

Database technology

DataDog, Inc.

620 8th Avenue, New York, NY 10018  USA

Log technology