Customer Data Processing Addendum

Last Updated:

December 27, 2022

This Data Processing Addendum (“DPA“), dated as of December 27, 2022 (the “Effective Date“), is made to and a part of the general contract and relationship under the Terms of Service (and any and all other agreements governing our Services) as amended and supplemented from time to time (the “Agreement“), by and between you (“Customer“) and North Florida Web (“Company“). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

Definitions

• “Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
• “Agreement” has the meaning set forth in the introductory section.
• “Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” will be construed accordingly.
• “Controller” means an entity that determines the purposes and means of the Processing of Personal Data.
• “Customer Data” means any Personal Data that Company Processes on behalf of Customer in the course of providing Services.
• “Applicable Data Protection Laws” means all effective data protection and privacy laws applicable to the Processing of Personal Data under the Agreement, including, but not limited to, where applicable, the GDPR, UK Data Protection Laws, and the CCPA.
• “EEA” means, for the purposes of this DPA, the European Economic Area and Switzerland.
• “GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and all applicable member state implementations thereof.
• “Model Clauses” means the Standard Contractual Clauses module for Controllers to Processors as approved by the European Commission in the form set out in Schedule D, as supplemented by the United Kingdom Information Commissioner’s Office’s International Data Transfer Addendum.
• “CCPA” means the California Consumer Privacy Act of 2018 [California Civil Code Sections 1798.100 – 1798.199], as amended (including by the California Privacy Rights Act of 2020), and its implementing regulations.
• “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
• “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.
• “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Process“, “Processes” and “Processed” will be construed accordingly.
• “Processor” means an entity that Processes Personal Data on behalf of a Controller.
• “Services” means any product or service provided by Company to Customer pursuant to the Agreement.
• “Sub-processor” means a third party engaged by Company to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA.
• “UK Data Protection Laws” means: (i) the United Kingdom General Data Protection Regulation; and (ii) the Data Protection Act 2018.

1. Scope of this DPA

This DPA applies where and only to the extent that Company Processes Customer Data that is subject to Applicable Data Protection Laws on behalf of Customer in the course of providing Services to the Customer pursuant to the Agreement.

2. Roles and Scope of Processing

Role of the Parties. As between Company and Customer, Customer is the Controller of Customer Data, and Company shall Process Customer Data only as a Processor acting on behalf of Customer. To the extent the CCPA is applicable to the Processing of Customer Data under the Agreement, the parties agree that Customer is a “business” and the Company is a “service provider”, as such terms are defined in the CCPA.

Customer Processing of Customer Data. Customer agrees that (i) it will comply with its respective obligations under Applicable Data Protection Laws in respect of its Processing of Customer Data and any Processing instructions it issues to Company; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Applicable Data Protection Laws for Company to Process Customer Data pursuant to the Agreement and this DPA.

Company Processing of Customer Data. Company will Process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to Company in relation to the Processing of Customer Data and Processing outside the scope of these instructions (if any) will require prior written agreement between Customer and Company.

Details of Processing. The details of the Processing under the Agreement are set forth in Schedule A.

Exceptions. Notwithstanding anything to the contrary in the Agreement (including this DPA), the Customer acknowledges that Company shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes such as billing, account management, technical support, product development and improvement, and sales and marketing. To the extent any such data used solely for Company’s business purposes is considered Personal Data under Applicable Data Protection Laws, Company is the Controller of such data and accordingly warrants that it shall Process such data in accordance with the Company Privacy Policy and Data Protection Laws.

3. Sub-processing

Authorized Sub-processors. Customer agrees that Company may engage Sub-processors to Process Customer Data on Customer’s behalf. The Sub-processors currently engaged by Company and authorized by Customer can be accessed in the “Profile & Privacy” tab of the North Florida Web Control Panel (the “Sub-processor List“).

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

Changes to Sub-processors. Company shall provide notice of any updates to its Sub-processors to Customer by updating the Sub-processor List with five (5) days advanced notice before using a new Sub-processor to provide the Services. The Sub-processor List will reflect the “last updated” date at all times. Customer may receive email notifications of changes to the Sub-processor List. If Customer does not approve of a new Sub-processor after receiving notice of such addition, and Customer provides a written notice to Company that includes an explanation of why Customer does not approve of the new Sub-Processor within the five (5) day period before Company uses the new Sub-processor to provide the Services, then Customer may terminate the affected Services via written notice to Company.

4. Security

Updates to Security Measures. Customer is responsible for reviewing the information made available by Company relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Applicable Data Protection Laws. Company’s minimum technical and organizational measures designed to protect Customer Data are set forth on Schedule B (the “Information Security Measures”). Customer acknowledges that the Information Security Measures are subject to technical progress and development and that Company may update or modify the Information Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

Personnel. Company will ensure that any person who is authorized by Company to Process Customer Data (including its staff, agents and authorized Sub-processors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty). Further, Company shall take steps to ensure that any person who is authorized by Company to have access to Customer Data does not Process such data except on instructions from Customer, unless such person is required to Process such data by Applicable Data Protection Laws.

Customer Responsibilities Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services.

Personal Data Breach Response. Upon becoming aware of a Personal Data Breach, Company shall notify Customer without undue delay and will provide timely information relating to the Personal Data Breach as it becomes known or as is reasonably requested by Customer. Company shall promptly take reasonable steps to mitigate, and where possible, to remedy the effects of, any Personal Data Breach.

5. Audit Reports

Customer acknowledges that Company is regularly audited for compliance with this DPA and Company’s security standards. Upon reasonable written request mailed to Company’s address as shown in the Privacy Policy, Company shall supply a summary audit report (“Report“) to Customer, which Report shall be subject to the confidentiality provisions of any non-disclosure agreement provided by Company for Customer’s execution in connection with the Report. Company shall also respond to any commercially reasonable written audit questions submitted to it by Customer provided that Customer shall not exercise this right more often than once per twelve (12) months.

6. International Transfers

Data Center Locations. Company may transfer and Process Customer Data anywhere in the world where Company, its Affiliates or its Sub-processors maintain Processing operations. Company will at all times provide an adequate level of protection for the Customer Data Processed, in accordance with the requirements of Applicable Data Protection Laws.

Model Clauses. To the extent that Company Processes any Customer Data protected by the GDPR or UK Data Protection Laws under the Agreement and/or that originates from the EEA or the United Kingdom, in a country that has not been designated by the European Commission, the Swiss Federal Data Protection Authority, or the United Kingdom’s Information Commissioner’s Office (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that Company shall be deemed to provide adequate protection (within the meaning of Applicable Data Protection Law) for any such Customer Data by complying with the Model Clauses. Company agrees that it is a “data importer” and Customer is the “data exporter” under the Model Clauses (notwithstanding that Customer is an entity located outside of the EEA). Annex III to the Model Clauses shall apply only with respect to the transfer of Customer Data protected by UK Data Protection Laws under the Agreement and/or that originates from the United Kingdom.

7. Return or Deletion of Data

Upon termination or expiration of the Agreement, Company shall, at Customer’s election and authenticated request, return, or to the fullest extent technically feasible, delete all Customer Data in its possession or control. Notwithstanding the foregoing, Company may retain Customer Data or archive Customer Data on its back-up systems where Company is required by applicable law, contractual or regulatory obligation, or where Company has legitimate business interests requiring the retention of some or all of the Customer Data. Company shall securely isolate and protect such Customer Data from any further Processing, except to the extent required by applicable law, contractual, or regulatory obligation.

8. Cooperation

The Services may provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under Applicable Data Protection Laws, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, Company shall (at Customer’s expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the Processing of Personal Data under the Agreement. In the event that any such request is made directly to Company, Company shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If Company is required to respond to such a request, Company will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.

Company will not disclose Customer Data to any government or third party except as necessary to disclose such information with a valid and binding order from a law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then Company will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so.

To the extent Company is required under Applicable Protection Laws, Company shall (at Customer’s expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

9. CCPA Clauses

To the extent that the CCPA is applicable to the Processing of Customer Data under the Agreement, the parties shall comply with Schedule C.

10. General

Any claims brought under or in connection with this DPA shall be subject to Company’s general terms (including the Terms of Service) as updated on the Legal webpage, including but not limited to, the exclusions and limitations set forth in the Agreement. Any claims against Company or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by Company in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any Applicable Data Protection Laws shall count toward and reduce Company’s liability under the Agreement as if it were liability to the Customer under the Agreement.

No one other than a party to this DPA, their successors and permitted assignees shall have any right to enforce any of its terms. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Applicable Data Protection Laws.

The parties agree that this DPA shall replace any existing DPA (including the Model Clauses (as applicable)) the parties may have previously entered into in connection with the Services.

This DPA and the Model Clauses will terminate simultaneously and automatically with the termination or expiration of the Agreement; provided, however, provisions requiring secure destruction of Personal Data and retention of Personal Data to satisfy legal, contractual, or regulatory requirements shall survive the termination or expiration of the DPA for the minimum time required to satisfy the respective obligations under those provisions.

Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

The Schedules to this DPA are incorporated in this DPA by this reference. If there is any conflict between this DPA and any Schedules to this DPA, this DPA shall prevail to the extent of that conflict. Notwithstanding the foregoing, if there is any conflict between this DPA and the Model Clauses, the Model Clauses shall prevail to the extent of that conflict.

The provisions of this DPA are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of this DPA shall remain in full force and effect.

Schedule A

Details of Processing

1. Subject matter: The subject matter of the Processing under this DPA is the Customer Data.
2. Duration: As between Company and Customer, the duration of the Processing under this DPA is set forth in Section 7 of this DPA.
3. Purpose and Nature: The purpose and nature of the Processing under this DPA is the provision of the Services to the Customer and the performance of Company’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
4. Categories of Data Subjects: Customer may upload Personal Data while utilizing the Services, the extent to which may be determined and controlled by Customer. This may include, but is not limited to:
   1. Customer’s prospects, customers, business partners, vendors, or third parties (who are natural persons);
   2. Customer’s employees, agents, advisors, third parties, and freelancers;
   3. Employees or affiliated persons of (1) above;
   4. Customer’s authorized users of the Services
5. Types of Personal Data: Customer may upload Personal Data while utilizing the Services, the extent to which may be determined and controlled by Customer. This may include, but is not limited to, the following categories: name, address, phone number, date of birth, email, and other Customer Data.

Schedule B

Information Security Measures

The following items are considered the minimum security requirements Company has in place that are designed to protect Customer Data:

• Appointment of one or more officers responsible for coordinating and monitoring the information technology rules and procedures.
• Documented policy and procedures governing employee and vendor use of the information technology system.
• Process to identify and respond to suspected or known security incidents.
• Internally, data at rest is secured by roles or group permissions and audited periodically to make sure that people only have access to data that they need to do their jobs and that terminated users accounts are disabled.
• Servers are patched in a timely fashion to make sure that the latest security updates are applied.
• Transport Layer Security (TLS) is used wherever applicable for both web and email traffic. Email is also filtered and scanned multiple times coming in.
• Virtual Private Networks (VPNs) are used to encrypt traffic between all of our locations.
• External users also use encrypted VPN connectivity to gain access to internal resources and this is granted on a per-user basis.
• All stored passwords are encrypted.
• Data is synchronized between its primary and backup location daily.
• Third party auditors conduct IT audits annually and review policies and procedures.

Schedule C

CCPA Clauses

This Schedule is only applicable to the DPA to the extent that the CCPA is applicable to the Processing of Customer Data under the Agreement. As used in this Schedule, the terms “Personal Information”, “Sell”, “Share”, “Business Purpose”, and “Commercial Purpose” shall have the meanings given in the CCPA.

To the extent Customer Data constitutes Personal Information under the Agreement:

• Company shall not Sell or Share any Customer Data;.
• Company shall not retain, use, or disclose Customer Data for any purpose other than for the Business Purposes specified in the Agreement, namely offering domain names, web hosting and design, cloud services, e-mail services, including for any Commercial Purpose other than the Business Purposes specified in the Agreement.
• Company shall not retain, use, or disclose Customer Data outside of the direct business relationship between Customer and Company.
• Company shall not combine such Customer Data received from, or on behalf of, Customer with Customer Data received from, or on behalf of, any third party, except to perform any Business Purpose permitted by the CCPA.
• Company shall comply with applicable obligations under the CCPA and provide the same level of protections to Customer Data as is required by the CCPA, including assisting Customer in complying to consumers’ CCPA requests.
• Customer has the right to take reasonable and appropriate steps to help ensure that the Company uses Customer Data in a manner consistent with the Customer’s obligations under the CCPA.
• Company will notify Customer if it makes a determination that Company can no longer meet its obligations under the CCPA. If Company notifies Customer of unauthorized use of Customer Data, including under the foregoing sentence, Company will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use.

Schedule D

Model Clauses

SECTION 1

Clause 1

Purpose and scope

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

(b) The Parties:

• (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
• (ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

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

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

Clause 3

Third-party beneficiaries

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

• (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
• (ii) Clause 8.1(b), 8.9(a), (c), (d) and (e); ;
• (iii) Clause 9(a), (c), (d) and (e);
• (iv) Clause 12(a), (d) and (f);
• (v) Clause 13;
• (vi) Clause 15.1(c), (d) and (e);
• (vii) Clause 16(e);
• (viii) Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7

Docking Clause

Not applicable.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

(a) 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.

(b) 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

(a) 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.

(b) 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.

(c) 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.

(d) 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 2 (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

a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) 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.

(c) 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.

(d) 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.

(e) 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

(a)GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least five (5) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) 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 subjects3. 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.

(c) 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.

(d) 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.

(e) 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

(a) 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.

(b) 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.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

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

(b) 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.

(c) 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.

(d) 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.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) 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

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a) [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.

(b) 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

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures 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.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

• (i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
• (ii) the laws and practices of the third country of destination- including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards4;
• (iii) 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.

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

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

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

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer 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

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

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

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

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

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

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

15.2 Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

• (i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
• (ii) the data importer is in substantial or persistent breach of these Clauses; or
• (iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data 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.

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

Clause 17

Governing law

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

Clause 18

Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of the Republic of Ireland.

(c) 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.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

Endnotes

1 Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

2 The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

3 This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

4 As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

APPENDIX

ANNEX I

A. LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: [Customer name on file within North Florida Web account]

Address: [Customer address on file within North Florida Web account]

Contact person’s name, position and contact details: [Customer as defined above]

Activities relevant to the data transferred under these Clauses: As described in this Appendix, the DPA, and the Agreement.

Signature and date: [As digitally recorded upon account creation and as bound by the Terms of Service]

Role (controller/processor): Controller.

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: North Florida Web

Address: Unit 214, 3857 Indian Trail., Destin, FL 32541-5802

Contact person’s name, position and contact details:

Attn: Data Privacy Officer

Email: privacypolicy@northfloridaweb.net

Activities relevant to the data transferred under these Clauses: As described in this Appendix, the DPA, and the Agreement.

Signature and date: [As digitally recorded upon account creation and as bound by the Terms of Service]

Role (controller/processor): Processor.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

As set forth in Schedule A to this DPA.

Categories of personal data transferred

As set forth in Schedule A to this DPA.

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

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

On a continuous basis as needed to provide the Services.

Nature of the processing

As set forth in Schedule A to this DPA.

Purpose(s) of the data transfer and further processing

As set forth in Schedule A to this DPA.

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

As set forth in Section 7 to this DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing As set forth in the Agreement, in order to provide the Services, for the term of the Agreement.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

[To complete based on the data exporter’s operations]

ANNEX II

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

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

As set forth in Schedule B to this DPA.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter

As set forth in Schedule B to this DPA.