Data Protection Addendum – UNA

1. Interpretation

In this Appendix:

1.1. the following terms shall have the following meanings, unless the context requires otherwise:

Agreement: the services agreement in respect of which this Appendix forms part;

Appendix: this appendix;

Candidate: an employee or prospective employee who is invited to complete an assessment; Controller: has the meaning set out in DPA18;

Data Processing Summary: the summary at Paragraph 3.11 as updated by us from time to time on notice to you setting out the scope, nature and purpose of Processing by us, the duration of the Processing, the types of Personal Data that we are to Process, and the categories of Data Subject;

Data Subject: has the meaning set out in DPA18;

Data Protection Legislation: in relation to any personal data which is processed in the performance of the Agreement, the General Data Protection Regulation (EU) 2016/679 (“GDPR”) to the extent incorporated into English law including the UK GDPR, and The Data Protection Act 2018 (“DPA18”), in each case together with any national implementing laws, regulations, secondary legislation and any other applicable or equivalent data protection or privacy laws, as amended or updated from time to time, in the UK, and any successor legislation to such laws;

Party: us or you, and Parties shall mean both of us and you;

Personal Data: has the meaning set out in DPA18, and relates only to personal data, or any part of such personal data, of which you are the Controller and in relation to which we are the Processor and providing services under the Agreement;

Personal Data Breach: has the meaning set out in DPA18;

Processing: has the meaning set out in DPA18, and Process shall be interpreted accordingly;

Processor: has the meaning set out in DPA18;

Special Categories of Personal Data: those categories of data listed in Article 9(1) GDPR;

Supervisory Authority: has the meaning set out in DPA18;

we, us or our: Arctic Shores Limited, a company registered in England and Wales with registered number 08589048 and registered office at Lowry House, 17 Marble Street, Manchester, United Kingdom, M2 3AW; and

you or your: [ICUSTOMER ];

1.2. references to “Paragraphs” are to paragraphs of this Appendix

1.3. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise; and

1.4. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

2. Roles and responsibilities

2.1. In providing the Services:

2.1.1. You will provide us with details of Candidates who you wish to carry out an assessment (Registration Data). You will act as Controller of the Registration Data.

2.1.2. We will enable Candidates to register to carry out an assessment and will use the resulting data including additional data collected during the assessment process such as demographic information and survey responses (Assessment Data) for the purposes of carrying out the analysis set out in Paragraph 4.1.2. We will also analyse the Assessment Data against a profile or set of criteria and will provide results of that analysis to you (Assessment Result). We will also use the Assessment Data and Assessment Result for the purposes described in more detail in Paragraph 4. We will act as joint Controller with you in respect of the Assessment Data and Assessment Result.

2.2. We will hold personal data relating to your personnel in order to manage our relationship with you, including for account management, billing and marketing purposes. We will act as Controller in relation to this data, in accordance with our UNA Privacy Policy. Each Party confirms that it holds, and during the term of the Agreement will maintain, all registrations and notifications required in terms of the Data Protection Legislation which are appropriate to the performance of its obligations under the Agreement.

2.3. Each Party confirms that, in the performance of the Agreement, it will comply with the Data Protection Legislation.

3. Registration Data

3.1. You shall own all right, title and interest in and to all of the Registration Data.

3.2. The Parties acknowledge that, for the purposes of Data Protection Legislation, you are the Controller and we are the Processor of any Personal Data comprised within the Registration Data. The scope, nature and purpose of Processing is as set out in the Data Processing Summary.

3.3. In relation to the Registration Data, we will:

3.3.1. Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Legislation or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform the you;

3.3.2. ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

3.3.3. ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);

3.3.4. notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Personal Data, and ensure that any such subcontractor complies with the provisions of this Paragraph 2 as if it was a Party; if you (acting reasonably) disagree with the appointment of the subcontractor for reasons relating to the Processing of Personal Data, you shall have the right to terminate the Agreement on 60 days’ written notice; for the avoidance of doubt, any appointment of subcontractors in the same corporate group or banner as an existing subcontractor (for example, a subsidiary in a different country) shall not require further approval from you; a list of pre-approved sub processors for such purposes are set out in the Data Processing Summary;

3.3.5. taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Legislation, to the extent that such requests relate to the Agreement and our obligations under it;

3.3.6. assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

3.3.7. at your option, delete (to the extent practicable) or return all the Personal Data to you after termination of the Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;

3.3.8. make available to you all information necessary to demonstrate our compliance with this Paragraph 3.3, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you; and

3.3.9. inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause an infringement of) Data Protection Legislation.

3.4. Each Party will notify the other Party without undue delay if it becomes aware of a Personal Data Breach relating to either Party’s obligations in relation to the Assessment Data.

3.5. You shall undertake appropriate data protection impact assessments to ensure that Processing of Registration Data complies with Data Protection Legislation. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.

3.6. It is your responsibility to ensure that Registration Data is dealt with in a way that is compliant with the “data protection principles” (as defined in DPA18).

3.7. It is your responsibility to ensure that:

3.7.1. you are able to justify the Processing of Personal Data as lawful in accordance with Data Protection Legislation (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of Data Protection Legislation;

3.7.2. where Personal Data falls within the Special Categories of Personal Data, the Processing of such Special Categories of Personal Data is justified as lawful under Data Protection Legislation before Processing takes place;

3.7.3. where the Processing of Special Categories of Personal Data is not justified as lawful under Data Protection Legislation, no such data will be sent to us; and

3.7.4. you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of the Agreement.

3.8 In the event that we:

3.8.1. comply with your instructions in respect of Processing, we shall not have any liability (subject to any liability that we cannot exclude or limit at law) for any damage caused by Processing that Personal Data, or for any consequences in the event that such Processing otherwise infringes Data Protection Legislation, to the extent that such damage or consequences result from our compliance with such instructions; and/or

3.8.2. refuse to comply with your instructions in respect of Processing due to concerns that compliance will cause a breach of Data Protection Legislation, we shall not have any liability (subject to that we cannot exclude or limit at law) for any failure to follow such instructions.

3.9. Each Party agrees to indemnify, and keep indemnified and defend at its own expense, the other Party, against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable, due to any failure by the first Party or its employees or agents to comply with this Paragraph 2.

3.10. If the transitional period under the UK-EU Trade and Cooperation Agreement between the UK and the EU expires on 30 June 2021 before the European Commission has adopted an adequacy decision for the UK then where personal data is to be transferred between the UK and the EU and no other safeguard applies, unless otherwise agreed between the parties in writing the parties agree that the standard contractual clauses (SCCs) in the EU Commission’s decision 2004/915/EC as set out in Schedule 2 will apply to such transfers of personal data from that date. The parties agree to use best endeavours to complete the annexes to the SCCs promptly and in any event within 30 days for the purpose of giving full effect to the clauses. If there is any conflict between this agreement and the SCCs the terms of the SCCs shall apply.

3.11. The following table sets out the scope, nature and purpose of the Processing under the Agreement:

Scope, nature and purpose of Processin Registration Data is processed by Arctic Shores along with Assessment Data and Assessment Results in connection with providing the behaviour-based assessment services to CUSTOMER to support their recruitment processes, career development processes and discussions around ideal candidate fit Optionally Assessment Data may also be processed to provide anonymised demographic data to support CUSTOMER’s equal opportunities processes. The processing of Assessment Data is a necessary and integral part of the performance of services
Duration of Processin Until the expiry / termination date of the Agreement. The Candidate data may be anonymised prior this date and retained in anonymised form only, once it is no longer necessary to hold the identifiable version for the purposes of either party performing its obligations under this agreement Details of Arctic Shores’ standard timescales for anonymisation are available on request.
Types of Personal Data being Processed
  • Name
  • Email address
  • Candidate ID
  • IP address
  • Performance Data
  • Optionally provided demographic data such as: age, gender, education level, socioeconomic status, ethnicity & health information including information about disabilities and learning difficultie
Categories of Data Subject in respect of whom Personal Data is being Processed
  • Candidates -employees or prospective employees invited to take the assessmen
Subprocessors
  • SendGrid
  • Alchemer
  • AWS Ireland

4. Assessment Data and Assessment Result

4.1. This Paragraph sets out the framework for the sharing and use of the Assessment Data and Assessment Result and defines the principles and procedures that the parties shall adhere to and the responsibilities the parties owe to each other in respect of that data.

4.2. We agree to only process the Assessment Data and Assessment Result for the following purposes:

4.2.1. The analysis of the Assessment Data on your behalf against your job fit criteria as part of the Services;

4.2.2. Enabling Data Subjects to authorise use of their Assessment Data for future analysis without repeating the assessment. This requires us to store the Data Subject’s identity in order to identify their data;

4.2.3. The use of anonymised or pseudonymised Assessment Data and Assessment Result by us for such purposes as we consider appropriate, including:

4.2.3.1.1. research;

4.2.3.1.2. statistical analysis;

4.2.3.1.3 development and enhancement of our services and products including creating norm groups and generic profiles;

4.2.3.1.4 the publication of industry statistics and market trends; and

4.2.3.1.5. reporting on benchmarking to third parties;

and you acknowledge that while we will use a version of the Assessment Data with personal identifiers removed for such purposes, the original copy of the data may still be in existence at the time of use.

4.3. We will also process the Assessment Data and Assessment Result on your behalf in order to provide the results of the analysis with you, where you have requested bespoke reports or analysis and will provide you with access to such data and any reports or analysis created on your behalf.

4.4. From time to time we may notify you of additional processing of Assessment Data and Assessment Result for purposes additional to those set out above provided that such processing continues to comply with Data Protection Legislation.

4.5. Each party will appoint a single point of contact for Data Subjects and who will also work together to reach an agreement with regards to any issues arising from the data sharing.

4.6. We will provide information to Data Subjects about the use of Assessment Data and Assessment Result setting out our grounds for processing the Assessment Data and such other information as is required by the Data Protection Legislation.

4.7. Each party shall comply with its obligations under Article 26 of the GDPR and agrees to provide to the other party such cooperation as may reasonably be required to assist that other party in compliance with its obligations under Article 26 of the GDPR.

4.8. Each party shall provide such assistance as is reasonably required to enable the other party to comply with requests from Data Subjects to exercise their rights under Data Protection Legislation within the time limits imposed by the Data Protection Legislation.

4.9. We will not retain or process the Assessment Data or Assessment Result for longer than is necessary to carry out the activities set out in Paragraph 4.2 save that we may retain anonymised data indefinitely provided that it no longer constitutes Personal Data. We may also retain Assessment Data and Assessment Result in accordance with any statutory or professional retention periods applicable to us. You acknowledge that we may retain the Assessment Data and Assessment Result and anonymised or pseudonymised data derived from it beyond the termination or expiry of the Agreement.

4.10. We shall ensure that any subprocessing of the Assessment Data and Assessment Result or transfer of the data to a third party located outside the UK complies with the Data Protection Legislation.

4.11. We shall ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Assessment Data and Assessment Result and against accidental loss or destruction of, or damage to, the Assessment Data and Assessment Result, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Assessment Data and Assessment Result, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Assessment Data and Assessment Result can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us).

4.12. We shall notify any Personal Data Breach affecting the Assessment Data or Assessment Result to you promptly and each party shall provide reasonable assistance as is necessary to the other in order to facilitate the handling of the Personal Data Breach. We agree that where the Personal Data Breach results from an incident affecting our systems, we will be responsible for the investigation of the Personal Data Breach but will provide regular updates to you in order to enable you to comply with your legal obligations.

5. General

5.1. In the event of any conflict between a provision of this Appendix and a provision of the Agreement, the provision of this Appendix shall prevail.

5.2. If any provision or part-provision of this Appendix is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Paragraph 5.2 shall not affect the validity and enforceability of the rest of this Appendix.

5.3. If any provision or part-provision of this Appendix is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

5.4. You must not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Appendix or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).

5.5. This Appendix and the Agreement (and any documents referred to in this Appendix or the Agreement) constitute the entire agreement and understanding of the Parties in relation to the subject matter of this Appendix and the Agreement, and:

5.5.1. supersede any previous agreement between the Parties relating to such subject matter; and

5.5.2. shall apply to the exclusion of and prevail over any express terms contained in any standard documentation of either Party.

The Parties acknowledge that they have not entered into this Appendix in reliance upon any statement, representation, assurance or warranty which is not set out in this Appendix.

5.6. Any variation or amendment to this Appendix will not be binding on the Parties unless set out in writing, expressed to amend this Appendix and signed by an authorised representative of each Party.

5.7. Nothing in this Appendix shall constitute a partnership or employment or agency relationship between the Parties.

5.8. A person who is not a Party shall not have any rights under or in connection with this Appendix.

5.9. No failure or delay by either Party to exercise any right or remedy provided under this Appendix or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

5.10. This Appendix and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.

5.11. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Appendix, its subject matter or its formation.

  1. Except as set out in paragraph 3 of this letter, the Agreement shall continue in full force and effect.
  2. This letter and any dispute or claim (including, without limitation, non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and interpreted in accordance with the law of England.
  3. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this letter or its subject matter or formation.

Schedule 2 The Standard Contractual Clauses

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation:………………………………………………………
address:………………………………………………………
tel:………………………………………………………
fax:………………………………………………………
e-mail:………………………………………………………
Other information needed to identify the organisation………………………………………………………

(the data exporter)

Name of the data importing organisation:………………………………………………………
address:………………………………………………………
tel:………………………………………………………
fax:………………………………………………………
e-mail………………………………………………………
Other information needed to identify the organisation………………………………………………………

(the data importer)

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in A.

1. Definitions

For the purposes of the Clauses:

(a) personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);

(b) the data exporter means the controller who transfers the personal data;

(c) the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

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

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

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

2. Details of the transfer

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

3. Third-party beneficiary clause

The data subject can enforce against the data exporter this e 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), 6.1 and 6.2, 7, 8.2 and 9 to 12 as third-party beneficiary.

The data subject can enforce against the data importer this clause, clause 5(a) to clause 5(e) and clause 5(g), 6, 7, 8.2 and 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.1. The data subject can enforce against the sub-processor this 3.1, clause 5(a) to clause 5(e) and clause 5(g), 6, 7, 8.2, and 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

4. Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in B to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and

(j) that it will ensure compliance with clause 4(a) to clause 4(i).

5. Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in B before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of B which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with 11; and

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

6. Liability

6.1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in 3 or in 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

6.2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in 3 or in 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

6.3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in 3 or in 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

7. Mediation and jurisdiction

7.1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

8. Cooperation with supervisory authorities

8.1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

8.2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

8.3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).

9. Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely …………………………………………………………………………

10. Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

11. Sub-processing

11.1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

11.2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

11.3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely …………………………………….

11.4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

12. Obligation after the termination of personal data processing services

12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

12.2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

On behalf of the data exporter:

Name (written out in full):………………………………………………………
Position:………………………………………………………
Address:………………………………………………………
Other information necessary in order for the contract to be binding (if any):………………………………………………………
Signature………………………………………………………

(Stamp of organisation)

On behalf of the data importer:

Name (written out in full):………………………………………………………
Position:………………………………………………………
Address:………………………………………………………
Other information necessary in order for the contract to be binding (if any):………………………………………………………
Signature………………………………………………………

(Stamp of organisation)

Appendix 1

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this A.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

…………………………………………….

 

Data importer

The data importer is (please specify briefly your activities relevant to the transfer):

Behaviour-based psychometric assessment provider

 

Data subjects

The personal data transferred concern the following categories of data subjects (please specify)

Candidates -employees or prospective employees invited to take the assessmen

 

Categories of data

The personal data transferred concern the following categories of data (please specify)

Personal data may include name, email address, IP address, Candidate ID, psychometric assessment results, performance data and demographic data

 

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify)

Ethnicity and disability are optionally collected in the demographic survey

 

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify)

Candidate data is processed by Arctic Shores in connection with providing the behaviour-based assessment services to CUSTOMER to support their recruitment processes and equal opportunities. The processing of Candidate data is a necessary and integral part of the performance of services

Optionally, Registration Data is processed by Arctic Shores in connection with:

  1. CUSTOMER employees using the assessment for career development purposes.
  2. CUSTOMER employees using the assessment for career development purposes.
  3. CUSTOMER employees participating in validation studies to create bespoke fit profiles

 

DATA EXPORTERDATA IMPORTER
Name:…………………………………………..Name:…………………………………………..
Authorised signature:………………………Authorised signature:………………………

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

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

Data importer will maintain technical and organisations security controls for protection of the security, confidentiality, and integrity of Data Exporter Personal Data, as described in the Arctic Shores Security Pack applicable to the specific Arctic Shores Services purchased by data exporter. Data Importer will not materially decrease the overall security of the Arctic Shores Services during a subscription term.