Data Processing Agreement

Note: This data processing agreement is based on the Standard Contractual Clauses between Controllers and Processors in the EU under Article 28 (7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29 (7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council issued by the EU Commission on June 4, 2021 (Implementing Decision C(2021) 3701). As required pursuant to Section I, Clause 2 (a), the Clauses have not been modified by Decentriq. However, where the Clauses present a choice between different options, the non-applicable option has been deleted. Further, in Section II, Clause 7.7 (a), the notification period for changes in the List of Sub-Processors has been set to 3 months. Annex I references the parties of the main agreement under which Decentriq provides its services as a Processor under these Clauses. Where a Controller and Decentriq executed a separate DPA either based on these Clauses or otherwise, the executed DPA shall apply exclusively instead of these Clauses. Annexes II – IV reference additional information, including information published by Decentriq on its online resources, such as detailed processing descriptions, technical and organizational measures and the list of sub-processors. An additional Annex V has been added for processing under these Clauses that does not fall under the territorial scope 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.

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STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1: Purpose and scope 

1. The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) 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.¹
2. The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 and/or Article 29 (3) and (4) Regulation (EU) 2018/1725.
3. These Clauses apply to the processing of personal data as specified in Annex II.
4. Annexes I to IV are an integral part of the Clauses.
5. These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. 
6. These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

Clause 2: Invariability of the Clauses 

• The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
• This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3: Interpretation

• Where these Clauses use the terms defined in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively, those terms shall have the same meaning as in that Regulation.
• These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively.
• These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4: Hierarchy

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

Clause 5 - Optional: Docking clause

• Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.
• Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.
• The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

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SECTION II – OBLIGATIONS OF THE PARTIES

Clause 6: Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

Clause 7: Obligations of the Parties 

7.1. Instructions

• The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.
• The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or the applicable Union or Member State data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II. 

7.4. Security of processing

• The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (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 purposes of processing and the risks involved for the data subjects.
• The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing 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 (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6 Documentation and compliance

• The Parties shall be able to demonstrate compliance with these Clauses.
• The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
• The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. At the controller’s request, the processor shall also permit 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 an audit, the controller may take into account relevant certifications held by the processor.    
• The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.
• The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

• The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 3 months in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.²
• Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
• At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
• The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.
• The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

• Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.
• The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

Clause 8: Assistance to the controller 

• The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.
• The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions
• In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
  • the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
  • the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;
  • the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;
  • the obligations in Article 32 Regulation (EU) 2016/679.³
• The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

Clause 9: Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 Regulation (EU) 2016/679 or under Articles 34 and 35 Regulation (EU) 2018/1725, where applicable, taking into account the nature of processing and the information available to the processor.

9.1 Data breach concerning data processed by the controller

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

• in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
• in obtaining the following information which, pursuant to Article 33(3) Regulation (EU) 2016/679⁴, shall be stated in the controller’s notification, and must at least include:
  • the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  • the likely consequences of the personal data breach;  
  • the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this 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.

• in complying, pursuant to Article 34 Regulation (EU) 2016/679⁵, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

9.2 Data breach concerning data processed by the processor

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

• a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
• the details of a contact point where more information concerning the personal data breach can be obtained;
• its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this 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.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.⁶  

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SECTION III – FINAL PROVISIONS

Clause 10: Non-compliance with the Clauses and termination

• Without prejudice to any provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
• The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:
  • the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
  • the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725;
  • the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
• The processor shall be entitled to terminate the  contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.
• Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

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ANNEX I LIST OF PARTIES

Processor(s) 

Decentriq AG, Josefstr. 219, 8005 Zurich, Switzerland (Decentriq)

Controller(s)

The relevant company(ies) or organisation(s) using the data analytics service provided by Decentriq.*  

*These Clauses either form integral part of the agreement under which Decentriq provides its data processing services to the Controller(s). If there is no such agreement, the Controler had to accept these Clauses prior to any processing of personal data on data analytics service provided by Decentriq. Where a Controller and Decentriq executed a separate DPA either based on these Clauses or otherwise, the executed DPA shall apply exclusively instead of these Clauses.

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ANNEX II: DESCRIPTION OF THE PROCESSING

The processing of personal data carried out by Decentriq on behalf of the Controller under these Clauses is described in the processing descriptions at https://www.decentriq.com/legal/processing-description.  

Where the Controller uses any Decentriq offerings, the relevant processing description(s) shall be included into these Clauses by reference.

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

The technical and organizational measures implemented by Decentriq are described in the Decentriq Trust Center at https://trust.decentriq.com.  

Note: Additional details on specific measures, in particular, Decentriq’s technical implementation of confidential computing technology to encrypt personal data processed on behalf of the Controller under these Clauses are available on request.

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ANNEX IV: LIST OF SUB-PROCESSORS

Sub-Processors utilized by Decentriq for any processing activities under these Clauses are published at https://decentriq.com/legal/processing-locations.

Note: The list reflects processing activities for which Decentriq acts as a processor and utilizes sub-processors as well as processing activities for which Decentriq acts as a controller and utilizes processors. Sub-processors and processors are marked accordingly. Only sub-processors utilized by Decentriq in the context of processing activities for which Decentriq acts as a processor are in-scope of these Clauses. Processing activities for which Decentriq acts as a controller are not in-scope of these Clauses but governed by Decentriq’s Privacy Policy published at https://www.decentriq.com/legal/privacy-policy.

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ANNEX V: NON-EU/EEA RIDER

Section 1 – General

Where the processing under these Clauses does not fall under the territorial scope 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, these Clauses shall be read and interpreted in the light of the provisions of the data protection laws applicable to the processing hereunder. In no event shall these Clauses be interpreted in a way that prejudices the fundamental rights or freedoms of the data subjects.

The jurisdiction-specific provisions set out in Sections 2 to 10 below apply, in addition to and without limiting the rest of these Clauses, where the processing falls within the territorial scope of the data protection laws referenced therein. In the event of any conflict between such jurisdiction-specific provisions and any other provision of these Clauses with respect to processing within their respective scope, the jurisdiction-specific provisions shall prevail.

Section 2 – Additional Provisions for Controllers subject to Swiss Data Protection Law

Where the processing under these Clauses falls within the territorial scope of the Swiss Federal Act on Data Protection of 25 September 2020 (the“FADP”), the following additional provisions apply:

(a) Interpretation. References in these Clauses to:

(1) “Regulation (EU) 2016/679” shall, where and to the extent applicable, be read as references to the FADP and its implementing ordinances;

(2) “Member State law” shall be read as references to Swiss federal or cantonal law; and

(3) the competent “supervisory authority” shall be read as a reference to the Swiss Federal Data Protection and Information Commissioner (“FDPIC”).

(b) Cross-Border Transfers. Any transfer of personal data from Switzerland to a country not recognised by the Swiss Federal Council as providing an adequate level of protection shall be carried out in compliance with Articles 16 to 18 FADP, including, where appropriate, on the basis of the EU Standard Contractual Clauses as recognised by the FDPIC with the Swiss-specific adaptations published by the FDPIC.

(c) Personal Data Breaches.Notifications and assistance under Clause 9 shall also be provided having regard to Article 24 FADP.

Section 3 – Additional Provisions for Controllers subject to UK Data Protection Law

Where the processing under these Clauses falls within the territorial scope of the UK GDPR or the Data Protection Act 2018, the following additional provisions apply:

(a) Interpretation. References in these Clauses to:

(1) “Regulation (EU) 2016/679” shall be read as references to the UKGDPR (being Regulation (EU) 2016/679 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, and as amended from time to time) and to the Data Protection Act 2018;

(2) “Member State law” shall be read as references to the laws of the United Kingdom or any part thereof; and

(3) the competent “supervisory authority” shall be read as a reference to the Information Commissioner’s Office (ICO).

(b) International Transfers. Any transfer of personal data outside the United Kingdom by the Processor or a sub-processor in the course of providing the services shall be carried out in compliance with Chapter V of the UK GDPR, including, where appropriate, on the basis of the International Data Transfer Agreement (IDTA) or the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by theInformation Commissioner under section 119A of the Data Protection Act 2018.

(c) Personal Data Breaches. Notifications and assistance under Clause 9 shall be provided having regard to Articles 33 and 34 of the UK GDPR.

Section 4 – Additional Provisions for Controllers subject to US Privacy Laws

4.1 California Consumer Privacy Act

Where the processing under these Clauses involves “personal information” of California “consumers” as defined in the California Consumer Privacy Act of2018, as amended by the California Privacy Rights Act, together with its implementing regulations (collectively, the “CCPA”), the following provisions apply:

(a) Roles. The Controller is a “Business” and Decentriq is a “Service Provider” within the meaning of the CCPA. Personal data processed under these Clauses constitutes “personal information” within the meaning of the CCPA.

(b) Purpose limitation and restrictions.The Processor shall process personal information solely for the business purposes set out in Annex II and on the documented instructions of the Controller. The Processor shall not:

(1) “sell” or “share” personal information (as those terms are defined in the CCPA);

(2) retain, use or disclose personal information for any purpose other than the business purposes set out in Annex II, including for any “commercial purpose” of the Processor, or outside the direct business relationship between the Parties; or

(3) combine personal information received from or on behalf of the Controller with personal information received from or on behalf of any other person, or collected from the Processor’s own interaction with the consumer, except as permitted under section 7050(b) of the CCPA Regulations. For the avoidance of doubt, where the Controller is using the Processor’s services to combine its own personal information with personal information of a third-party, the Controller shall be solely responsible for compliance with rules applicable to such combination of personal information and downstream use of results.

(c) Compliance and assistance. The Processor shall (1) provide the same level of privacy protection to personal information as is required of the Controller under the CCPA; (2) notify the Controller without undue delay if it determines that it can no longer meet its obligations under the CCPA; and (3) permit the Controller to take reasonable and appropriate steps to stop and remediate any unauthorized use of personal information, in addition to the audit rights set out in Clause 7.6.

(d) Sub-processors. Engagement of sub-processors under Clause 7.7 shall be subject to a written contract imposing on the sub-processor equivalent restrictions and obligations as are imposed on the Processor under this Section 4.1.

(e) Deidentified information. Where the Processor receives or generates deidentified information in connection with the services, it shall comply with section 1798.140(m) of the CCPA, including by taking reasonable measures to ensure that the information cannot be associated with a consumer or household and by not attempting to reidentify it. For the avoidance of doubt, the Controller shall be responsible for implementing measures to ensure that the information contained in the output ofa DCR cannot be associated with a consumer or household in the DCR configuration.

(f) Certification. The Processor certifies that it understands the restrictions set out in this Section 4.1 and shall comply with them.

4.2 Other US State Privacy Laws

To the extent the processing under these Clauses falls within the scope of other comprehensive US state privacy laws (including, without limitation, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act and the Texas Data Privacy and Security Act, in each case as amended from time to time), Section 4.1 shall apply mutatis mutandis to the equivalent concepts under such laws (in particular, “controller” and “processor” in lieu of “Business” and “Service Provider”, and “personal data” in lieu of “personal information”). In any event, the Processor shall process personal data subject to such laws solely for the purposes set out in Annex II and on the documented instructions of the Controller, and shall not sell or share such personal data or process it for targeted advertising or profiling on its own behalf.

Section 5 – HIPAA Business Associate Provisions

5.1 Application

This Section 5 applies where (i) the Controller is a “covered entity” or a “business associate” of a covered entity within the meaning of the United States Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, together with their implementing regulations and any guidance issued thereunder by the U.S. Department of Health and Human Services (collectively, “HIPAA”), and (ii) the Controller makes available to the Processor, in the course of the services, information that constitutes “protected health information” (“PHI”) within the meaning of 45 C.F.R. § 160.103.

5.2 Intent; Business Associate Agreement

The Parties intend that these Clauses, together with the agreement of which they form part, shall constitute the business associate agreement required under 45 C.F.R. § 164.504(e) and shall be read and interpreted to give full effect to that intent. For this purpose, and solely with respect to processing of PHI, the Controller is the Covered Entity (or, as applicable, the upstream Business Associate) and the Processor is the Business Associate, as those terms are defined under HIPAA. No separate, stand-alone business associate agreement shall be required for the Processor to process PHI on behalf of the Controller; if the Controller nevertheless requires execution of a separate instrument, the Parties shall negotiate it in good faith, and, pending execution, this Section 5 shall apply.

5.3 Equivalence with 45 C.F.R. § 164.504(e)

The following provisions of these Clauses, read with Annexes II and III, are intended to and shall be construed to satisfy the corresponding requirements of 45 C.F.R. § 164.504(e) with respect to PHI:

(a) permitted and required uses and disclosures of PHI — Clauses 7.1 and 7.2, together with Annex II;

(b) appropriate safeguards to prevent unauthorized use or disclosure — Clause 7.4 and Annex III;

(c) reporting of unauthorized uses, disclosures and security incidents — Clause 9;

(d) flow-down of obligations to agents and sub-processors — Clause 7.7;

(e) assistance with individual rights of access, amendment and accounting of disclosures under 45 C.F.R. §§ 164.524, 164.526 and 164.528 — Clause 8;

(f) availability of records to demonstrate compliance — Clause 7.6; and

(g) return or destruction of PHI on termination — Clause 10(d).

5.4 Additional HIPAA-Specific Undertakings

In addition to and without limiting the other provisions of these Clauses, the Processor shall, with respect to PHI:

(a) Permitted purposes and minimum necessary. Use and disclose PHI only as permitted or required by these Clauses, as required by law, or as required for the proper management and administration of the Processor or to carry out its legal responsibilities (provided that, for any such disclosure to a third party, the Processor obtains reasonable written assurances that the PHI will be held confidentially and that the third party will notify the Processor of any breach), and in each case limit such use or disclosure to the minimum necessary amount of PHI in accordance with 42 U.S.C.§ 17935(b).

(b) Security Rule. Comply, in its capacity as a Business Associate, with the applicable provisions of the HIPAA Security Ruleset out at 45 C.F.R. §§ 164.308, 164.310, 164.312 and 164.316 with respect to electronic PHI.

(c) Breach notification. Notify the Controller of any Breach of Unsecured PHI (as those terms are defined in 45 C.F.R. §§ 164.402 and 164.410) without unreasonable delay, and in any event no later than sixty (60) calendar days after discovery of the Breach, with the content required by 45 C.F.R. § 164.410(c).

(d) Mitigation. Take reasonable measures to mitigate, to the extent practicable, any harmful effect known to the Processor of a use or disclosure of PHI in violation of this Section 5, in accordance with 45 C.F.R. § 164.530(f).

(e) Access by the Secretary. Make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of the U.S. Department of Health and Human Services for purposes of determining compliance with HIPAA, as required by 45 C.F.R. §164.504(e)(2)(ii)(I).

(f) Prohibited sale and marketing. Not sell PHI or use or disclose PHI for marketing or fundraising purposes except as permitted by, and in accordance with, 42 U.S.C. §§ 17935(d) and 17936, as applicable.

(g) Agent and sub-processor flow-down. Ensure that each agent and sub-processor to which the Processor provides PHI agrees inwriting to restrictions and conditions at least as protective as those applicable to the Processor under this Section 5, consistent with 45 C.F.R. §164.502(e)(1)(ii).

5.5 Precedence and Good-Faith Amendment

With respect to the processing of PHI, this Section 5 shall prevail over any inconsistent provision of these Clauses, except to the extent that the other provision is more protective of PHI. If, as a result of any change in HIPAA or in its interpretation by the Secretary of the U.S. Department of Health and Human Services, any amendment of these Clauses is reasonably necessary to maintain the Processor’s status as a compliant Business Associate, the Parties shall negotiate such amendment in good faith; failing agreement within a reasonable period, either Party may terminate the processing of PHI under these Clauses on reasonable prior written notice.

Section 6 – Additional Provisions for Controllers subject to the Brazilian LGPD

Where the processing under these Clauses falls within the territorial scope of the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados, Federal Law No. 13,709/2018, the “LGPD”), the following additional provisions apply:

(a) Interpretation. References in these Clauses to:

(1) “controller” shall be read as references to “controlador”, and “processor” as references to “operador”, within the meaning of Article 5 LGPD;

(2) “personal data” shall be read as references to “dados pessoais” within the meaning of Article 5 LGPD; and

(3) the competent “supervisory authority” shall be read as a reference to the National Data Protection Authority (Autoridade Nacional de Proteção de Dados, “ANPD”).

(b) International Transfers. Any international transfer of personal data by the Processor or a sub-processor shall be carried out in compliance with Articles 33 to 36 LGPD, including, where appropriate, on the basis of standard contractual clauses issued or recognized by the ANPD.

(c) Security Incidents. Notifications and assistance under Clause 9 shall be provided having regard to Article 48 LGPD.

Section 7 – Additional Provisions for Controllers subject to Quebec Privacy Law

Where the processing under these Clauses involves personal information subject to Quebec’s Act respecting the protection of personal information in the private sector, as amended by the Act to modernize legislative provisions as regards the protection of personal information (“Law 25”) (together, the “Quebec Privacy Act”), the following additional provisions apply:

(a) Supervisory Authority. The competent supervisory authority shall be the Commission d’accès à l’information du Québec (“CAI”).

(b) Communication outside Quebec. The Processor shall implement and maintain appropriate contractual, technical and organizational measures to ensure that personal information communicated outside Quebec in the course of providing the services receives a level of protection adequate in light of generally recognized data protection principles and the requirements of the Quebec Privacy Act. The Processor shall assist the Controller, on request, in conducting any privacy impact assessment the Controller is required to perform prior to such a communication.

(c) Confidentiality Incidents. Notifications and assistance under Clause 9 shall be provided having regard to the confidentiality incident obligations set out in the Quebec Privacy Act.

Section 8 – Additional Provisions for Controllers subject to Singapore Data Protection Law

Where the processing under these Clauses falls within the territorial scope of the Singapore Personal Data Protection Act 2012 (the “PDPA”), the following additional provisions apply:

(a) Interpretation. References in these Clauses to:

(1) the “processor” shall be read as references to a “data intermediary” within the meaning of section 2(1) PDPA, the Processor acting as such on behalf of and for the purposes of the Controller pursuant to these Clauses, which constitute a written contract within the meaning of section 4(2) PDPA;

(2) “personal data” shall be read as references to “personal data” within the meaning of section 2(1) PDPA; and

(3) the competent “supervisory authority” shall be read as a referenceto the Personal Data Protection Commission of Singapore (“PDPC”).

(b) Protection and Retention. The Processor shall comply with the Protection Obligation under section 24 PDPA and the Retention Limitation Obligation under section 25 PDPA, as further specified by Clause 7.4 (with Annex III) and Clause 10(d) of these Clauses respectively.

(c) Data Breach Notification. Notifications and assistance under Clause 9 shall additionally be provided having regard to Part 6A PDPA, including the Processor’s obligation under section 26C(2) PDPA to notify the Controller without undue delay from the time it has credible grounds to believe that a data breach has occurred in relation to personal data being processed on behalf of the Controller.

(d) Cross-Border Transfers. Where the Controller is subject to the Transfer Limitation Obligation under section 26 PDPA, the Processor shall reasonably assist the Controller in ensuring that any transfer of personal data to a country or territory outside Singapore is made to a recipient bound by legally enforceable obligations to provide a standard of protection comparable to the protection under the PDPA.

Section 9 – Additional Provisions for Controllers subject to Hong Kong Data Protection Law

Where the processing under these Clauses falls within the territorial scope of the Hong Kong Personal Data (Privacy) Ordinance (Cap. 486) (the “PDPO”), the following additional provisions apply:

(a) Interpretation. References in these Clauses to:

(1) the “controller” shall be read as references to a “data user” within the meaning of section 2(1) PDPO, and the “processor” as references to a “data processor” within the meaning of section 2(1) PDPO, the Processor acting as such on behalf of and for the purposes of the Controller pursuant to these Clauses;

(2) “personal data” shall be read as references to “personal data” within the meaning of section 2(1) PDPO; and

(3) the competent “supervisory authority” shall be read as a reference to the Office of the Privacy Commissioner for Personal Data, Hong Kong (“PCPD”).

(b) Contractual or Other Means. These Clauses are intended to constitute the contractual means by which the Controller, as data user, adopts measures to prevent unauthorized or accidental access, processing, erasure, loss or use of the personal data transferred to the Processor as required by Data Protection Principle 4(2) of Schedule 1 to the PDPO, and to prevent the Processor from retaining the personal data longer than is necessary for the processing of the data as required by Data Protection Principle 2(3) of Schedule 1 to the PDPO.

(c) Cross-Border Transfers. The Processor shall, upon the Controller’s reasonable request, assist the Controller in complying with any guidance issued by the PCPD on cross-border transfers of personal data, including by entering into such recommended model clauses or other instruments as the Controller may reasonably require.

(d) Data Breach Notification. Notifications and assistance under Clause 9 shall additionally be provided having regard to any guidance issued by the PCPD on data breach notification.

Section 10 – Other Jurisdictions

To the extent the processing under these Clauses falls within the territorial scope of any data protection or privacy law not specifically addressed in Sections 2 to 9 above (including, without limitation, Australia’s Privacy Act 1988, South Africa’s Protection of Personal Information Act, 2013(“POPIA”), Japan’s Act on the Protection of Personal Information (“APPI”),South Korea’s Personal Information Protection Act (“PIPA”), the People’s Republic of China’s Personal Information Protection Law (“PIPL”) and India’s Digital Personal Data Protection Act, 2023), these Clauses shall be read and interpreted in the light of such law, and the Parties shall cooperate in good faith to execute such additional agreements, instruments or schedules as may be required by such law (including any prescribed standard contractual clauses or data transfer mechanisms) prior to the commencement of any processing subject to such law.

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Change log:

^{Version: 1.0
Date: October 8, 2024
Changes: N/A
Comments: None
‍}

^{Version: 1.1
Date: April 1, 2025
Changes: Annex II.
Comments: Minor amendments to align with detailed Processing Descriptions at https://www.decentriq.com/legal/processing-description.
‍}

^{Version: 1.2
Date: June 24, 2025
Changes: Annex II.
Comments: All Processing Descriptions, including generic description for all DCR use-cases, now referenced in a separate document. New processing description for Publisher Audience Platform (PAP).}

^{Version: 1.3
Date: May 7, 2026
Changes: Annex V.
Comments: Addition of jurisdiction-specific clauses 2 - 10.}