Agreement pertaining to commissioned data processing

Version: September-25^th-2024

RIEGE (hereinafter referred to as “Processor”) and the customer (hereinafter referred to as “Controller”) have entered into a service agreement for the use of "Scope" as a software-as-a-service solution (hereinafter referred to as “Service Agreement”).

This involves the processing of personal data by the Processor on behalf of the Controller in accordance with Art. 28 GDPR (hereinafter referred to as the “DPA”).

This DPA shall apply to all activities in connection with the Service Agreement and during which the employees of or persons commissioned by the Processor may or may not come into contact with the personal data of the Controller.

§ 1 Subject matter and duration of the processing

(1) The subject matter of the processing DPA is derived from the Service Agreement. Essentially, this concerns the operation and maintenance of the Transport Management System ‘Scope’.

(2) The duration of the processing (term) is equal to the term of the Service Agreement. In addition, this DPA shall also apply to contract related data processing activities to be carried out either prior to the commencement or following the expiry of the Service Agreement.

(3) In the event that the customer has its registered office in a third country pursuant to Art. 44 GDPR, the parties also agree the EU Standard Contractual Clauses Processor to Controller ("SCC"), see Appendix A.

§ 2 Details of processing

(1) The type of personal data used as well as the nature and purpose of the processing of personal data by the Processor on behalf of the Controller are described in detail in the following.

(2) In the context of software development, the Processor uses anonymized test data for the safe commissioning of the software as well as for the prevention and correction of errors in the production environment. In some cases, it may be necessary to use real data for these purposes because test data cannot fully represent operations. In that regard, the Processor is allowed to use real data for limited periods in justified cases. These cases will be documented accordingly. The Processor will ensure compliance with the measures agreed in this DPA.

(3) The subject matter of the DPA generally comprises the following types of personal data and categories of data subjects.

a) Customers (names, addresses, contact details, including telephone, fax and email data, contract information, general information, bank details, billing and payment data)

b) Prospective customers / non-customers (names, addresses, contact details, including telephone, fax and email data, areas of interest, quotation data)

c) Employees, trainees, interns, former employees (essentially personal data, such as names, addresses, contact details, including telephone, fax and email data, areas of work)

d) Suppliers / service providers / commercial agents (names, addresses, contact details, including telephone, fax and email data, bank details, contractual relationships, time management data, billing and performance data)

e) Access rights of the active/configured employees within the application; as well as the signature in form of an image file (if required)

(4) The personal data will be stored within the territory of a Member State of the European Union or another signatory to the Agreement on the European Economic Area. Movement of data to a third country is only permissible where of the special requirements set down in Art. 44 ff. GDPR are complied with.

§ 3 Technical and organizational measures

(1) Prior to being awarded the contract, the Processor has provided sufficient guarantees that the technical and organizational measures are implemented in such manner that the processing will meet the requirements of the GDPR. These are accordingly documented by the Processor and presented to the Controller for inspection. If accepted by the Controller, these documented measures will form the basis of the DPA. These agreed technical and organizational measures are available at the following link: https://legal.riege.com/de-de/toms-en-2024-09 (hereinafter: Appendix TOM). In as far as a review/audit on the part of the Controller raises the need for amendments, these must be applied amicably, in as far as these are not contrary to the operational or economic needs of the Processor. In the case where compliance with the legal data protection provisions was, in principle, previously guaranteed, the Controller shall reimburse the Processor for the costs incurred as a result of this support.

(2) The technical and organizational measures are subject to technical and organizational progress and development. In this respect, the Processor is permitted to implement adequate alternative measures. These must not, however, fall short of the level of security provided by the specified measures. Major changes must be documented.

(3) All in all, the measures set out in Appendix TOM are aimed at ensuring a level of security appropriate to the risk with respect to the confidentiality, integrity, availability and resilience of the processing systems. These measures take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons in accordance with Art. 32, para. 1 GDPR.

§ 4 Correction, blocking and deletion of data, provision of information

(1) The Processor shall only process personal data, if the Controller requests this in the Service Agreement or any other documented instructions.

(2) If a data subject should apply directly to the Processor with a request to correct or delete his data, the Processor must forward this request to the Controller without delay.

(3) Should the Controller be under obligation to provide certain individuals with information regarding the processing of the data, the Processor shall support the Controller in making this information available. This precludes that the Controller has already demanded in writing or in textual form that the Processor comply with this request and that any costs incurred through providing his support shall be accordingly reimbursed to the Processor. The Processor shall not respond to any requests for information without the prior written consent of the Controller and shall instead refer the data subject to the Controller.

(4) The Processor shall ensure that erasure (Right to be forgotten) according to Art. 17 GDPR, rectification according to Art. 16 GDPR and access according to Art. 15 GDPR shall only take place upon the instructions of the Controller which shall be documented accordingly.

§ 5 Controls and other responsibilities of the Processor

(1) The Processor herewith declares that when processing personal data within the context of commissioned data processing, all the agreed measures shall be implemented in accordance with the DPA. The Processor declares that the Processor is familiar with the respective data protection laws and provisions applicable to the Processor, in particular with the GDPR and the EU Data Protection Adaptation and Implementation Act. However, as between the Parties, the Controller is responsible for the lawfulness of the processing of personal data.

(2) The Processor is not authorized to pass on data to third parties. Copies may not be made without the knowledge of the Controller. This does not include backup copies, in as far as these are required to ensure correct and proper data processing, nor does it include data that are required with a view to observing statutory retention periods.

(3) In addition to the fulfillment of the terms of this DPA, the Processor also has a number of legal commitments in accordance with Art. 28 to 33 GDPR. The Processor shall ensure that the following requirements are met:

1. Written designation of a data protection officer in accordance with Art. 37 GDPR who shall complete his tasks in accordance with Art. 38 and 39 GDPR. His contact details are available at the following link: https://legal.riege.com/en-de/data-protection-officer

2. The Processor shall ensure that confidentiality is maintained in accordance with Art. 28, para. 3 s.2 (b) GDPR. The Processor shall only have tasks completed by employees that have committed themselves to confidentiality in writing and who were previously made familiar with those data protection provisions that are of relevance to them.

3. In accordance with Art. 28, para. 3, s.2 (a) GDPR, the Processor and any of his subordinates who have access to personal data may only process these data upon receiving documented instructions from the Controller, which includes the powers contained in this DPA, unless the Processor is required to carry out such processing by law. These instructions may either be in writing or in electronic form (Art. 28, para. 9 GDPR). The commitment to maintain confidentiality shall continue to apply beyond the end of this DPA.

4. The Processor shall implement and maintain all the technical and organizational measures agreed for this DPA in accordance with Art. 28, para. 3 s.2 (c) in conjunction with Art. 32 GDPR (please refer to the following website for details: https://legal.riege.com/de-de/toms-en-2024-09).

5. The Processor shall inform the Controller without delay of any monitoring activities or measures on the part of the supervisory authority in as far as these are related to this DPA. This also applies in the case that a responsible authority investigates the Processor with regard to an offence or criminal proceedings connected with the processing of personal data within the context of commissioned data processing.

6. The Processor shall regularly examine his internal processes as well as the respective technical and organizational measures in order to ensure that all processing carried out in his area of responsibility is in compliance with the requirements of this DPA and that the rights of the data subjects are accordingly protected.

7. The Processor is under obligation to provide evidence to the Controller of the technical and organizational measures taken. This evidence may also be provided through complying with approved codes of conduct in accordance with Art. 40 GDPR, through the presentation of an attestation, reports or extracts from reports provided by independent bodies (e.g. data protection officer) or suitable certification in accordance with an approved data protection certification procedure, as well as through a data protection seal in accordance with Art. 42 GDPR, an IT security or data protection audit (e.g. “IT basic security” as defined by the Federal Office for Information Security or ISO 27001) and the reports resulting from these audits, in as far as these refer to the measures effectively agreed upon.

8. The Controller and the Processor shall cooperate, on request, with the supervisory authority in accordance with Art. 31 GDPR. The responsible party shall compensate the Processor for the expenses incurred.

9. The Processor shall assist the Controller in complying with the personal data security obligations, personal data breach notifications and communications, data protection impact assessments and prior consultations referred to in Art. 32 to 36 of the GDPR. The Controller shall reimburse the Processor for the expenses incurred in the performance of this task.

(4) The Processor shall maintain a record of all processing activities in accordance with Art. 30, para 2 GDPR. The Processor shall make this processing record available to the supervisory authority on request in accordance with Art. 30, para. 4 GDPR. The Processor shall provide the Controller with the required information to create a record of the processing activities.

§ 6 Subcontractual relationship / Subcontractors

(1) The processing of data via tele workstations (remote working) is permitted.

(2) The Controller herewith agrees that the Processor, in order to provide the contractually agreed services, may engage subprocessors with the provision of these services, resp. subcontract other companies to provide these services accordingly. If the Processor intends to use new subprocessors, the Controller shall have the opportunity to object to the addition or replacement of a subprocessor on objective grounds within a period of 30 days after notification by the Processor of an intended change. If the Controller does not object to the subprocessor within this period, the subprocessor may be commissioned to process personal data.

(3) The Processor shall structure the contractual agreements with the subprocessor in such a way that they comply with the data protection provisions in the contractual relationship between the Controller and the Processor.

(4) The Processor shall carefully select the subprocessor according to its suitability, with particular regard to the technical and organizational measures taken by it.

(5) Audits and inspections of subprocessors shall be carried out solely by the processor and its external auditors; if the Controller itself or its auditors intend to carry out a direct audit or inspection of the subprocessor, it shall issue a corresponding individual instruction in accordance with Section 9 (1).

(6) The subprocessors engaged by the Processor at the time of the conclusion of this DPA are available at the following website: https://legal.riege.com/en/subprocessors. The Controller confirms to have saved a permanent copy of the subprocessors engaged at the time of the conclusion of the DPA. Notification of new subprocessors shall be made by updating the website and by e-mail to the e-mail address provided by the Controller.

(7) A subprocessor relationship is understood to consist of such services that are directly related to providing the main service. Subcontracts in the meaning of this provision do not include ancillary services ordered by the Processor from third parties to assist in the performance of the processing. These may include, for example, telecommunications services, postal and shipping services, external personnel services, cleaning staff or auditors. However, to safeguard the protection and security of data belonging to the Controller, even where ancillary services are awarded to third parties, the Processor is under obligation to conclude adequate and lawful contractual agreements and undertake respective monitoring activities.

§ 7 Rights and duties on the part of the Controller, duty to tolerate and obligation to cooperate on the part of the Processor

(1) According to Art. 28, para. 1 GDPR, the Controller is under obligation to only cooperate with processors that provide sufficient guarantees to implement appropriate technical and organization measures. The Controller herewith pledges to observe the legal requirements contained in the data protection laws, in particular, to ensure that the transfer of data to the Processor is lawful. If the Controller has to conclude separate service contracts for third-party services with third-party providers in order to use third-party services and data in the Processor's system, the Controller is advised to agree the necessary data protection agreements with such third-party providers - if necessary with the necessary standard contractual clauses in accordance with Art. 44 et seq. GDPR. Processor is neither responsible nor liable for the transfer to and the processing by third party providers that are not Processor’s subprocessors.

(2) The Processor is aware that in connection with the procurement of services from the Processor, the Controller may act not only for itself but also for affiliated companies of the Controller (hereinafter “Affiliates”). In the last case, the following applies:

The respective Affiliate of the Controller is the controller within the meaning of the GDPR and has commissioned the Controller with the processing of personal data within the meaning of this DPA. The controller confirms that it has been instructed by these Affiliates and has obtained authorization from them to commission the Processor to process the personal data as a sub-processor. The Controller on which this DPA is based is the sole point of contact for the Processor and the Controller undertakes to exercise any rights of the Affiliates on their behalf. The Processor must fulfill any obligations to inform or notify only with respect to the Controller.

(3) The Controller has the right to check prior to the commencement of data processing that the data protection and contractual provisions are being observed on the part of the Processor and to follow this up with regular and appropriately-dimensioned audits - in consultation with the Processor - or, in individual cases, to appoint auditors/third parties who are subject to a professional duty to maintain confidentiality to do so, in as far as these are not in a competitive relationship with the Processor. The Processor is entitled to invoice any costs incurred as a result of these audits to the Controller.

(4) This includes, in particular, information collection on the part of the Processor, the review of the recorded data and data processing programs, as well as any other onsite audits. The Controller is entitled to carry out sample checks, generally to be announced at least 21 working days in advance, on the Processor’s business premises during normal business hours - without impeding business operations - in order to verify compliance with this Agreement by the Processor. The Processor is under obligation to be tolerant and cooperate with respect to the audit and, in particular, to provide the Controller with all the information and evidence required to be able to carry out the audit upon receipt of a written request to do so. This includes, for example, providing evidence that the technical and organizational measures (please refer here to § 5 (3) 10 of this DPA) are being accordingly implemented as well as proof that the approved codes of conduct in accordance with Art. 40 GDPR are being accordingly observed.

(5) The Controller shall inform the Processor immediately of any errors or irregularities determined whilst monitoring the results of the processing.

(6) The obligation to maintain a record of processing activities in accordance with Art. 30, para. 1 GDPR is the responsibility of the Controller, respectively his representative. Upon request, the Controller shall make this processing record available to the supervisory authority (Art. 30, para. 4 GDPR).

§ 8 Notification in the case of data protection breaches

In the case of personal data breaches (e.g. the loss or unlawful transfer or disclosure of personal data), the Processor shall inform the Controller without undue delay - irrespective of the cause. The Processor must consult the Controller and take appropriate measures to secure the data and limit any possible detrimental effect on the data subjects.

§ 9 Controller’s authority to issue instructions

(1) The scope of Controller's instructions is defined by this DPA and the Service Agreement. Under the terms of the DPA as described in this Agreement, the Controller shall furthermore retain a general right of individual instruction as to the nature, scope and method of data processing. Insofar as an individual instruction goes beyond the agreed services of the Service Agreement, the Processor may claim reasonable remuneration for the implementation of such individual instructions In the event that the Processor notifies the Controller that an individual instruction cannot be complied with even in return for separate remuneration, the Controller may terminate the Service Agreement and this DPA with seven working days notice to the end of the month.

(2) All instructions must be communicated in writing. The Controller must confirm any oral instructions in writing or by email (in textual form) without delay. The Controller shall notify the Processor in text form which persons are authorized to give instructions; if no notification is given, all persons of the Controller shall be deemed to be authorized to give instructions. The recipients of instructions at the Processor can be found on the following website: https://legal.riege.com/en-de/data-protection-officer

(3) The Processor must inform the Controller, if the Processor believes that a specific instruction represents a breach of the legal data protection provisions. The Processor may then postpone the execution of the relevant instruction until it is confirmed or changed by the Controller. Should such a postponement affect the Service Levels, resp. deadlines, agreed between the Parties, these shall be accordingly suspended for the duration of the postponement period.

§ 10 Liability

(1) The Processor shall only be held liable for damage caused through processing, should he fail to fulfill the duties imposed upon him through the GDPR, or should he fail to observe the lawfully administered instructions of the Controller responsible for this data processing or act against such instructions.

(2) The Controller - or several controllers - and the Processor - or several processors - shall be jointly and severally liable for any damage caused by the processing in the case of commissioned data processing in accordance with Art. 82, para. 4 GDPR.

(3) In all other respects, the liability provisions and limitations of the Service Agreement shall apply.

§ 11 Deletion of data and return of data media

(1) Unless otherwise specified in the Service Agreement, the Processor shall, upon receipt of a separately billable individual commission from the Controller, return to the Controller all documents in the Processor´s possession and all the results compiled through processing and usage, as well as all data produced in connection with the DPA to the Controller, or delete these in compliance with data protection law upon the prior written instructions of the Controller; backup media are exempt from the obligation to surrender and delete data. The same applies to test data and scrap material. A confirmation of the deletion, resp. destruction, must be issued to the Controller in writing and state the respective date.

(2) The Processor is entitled and obliged to delete all personal data that are no longer required in order to fulfil the DPA, at the latest upon termination of the Service Agreement.

(3) All documentation which serves as proof that the data have been processed correctly and as contractually agreed must be kept by the Processor beyond the termination of this DPA in compliance with the respective retention periods. The Processor may relieve himself of his obligations with respect to such documentation by handing it over to the Controller upon expiry of the DPA.

(4) Steps must be taken to ensure that specific data media destined for processing/deletion are protected from unauthorized access and loss whilst in transit.

§ 12 Final provisions

(1) In all other respects, the provisions of the Service Agreement (including the General Terms and Conditions of the Processor) shall apply. In the event of a conflict, the provisions of this DPA shall take precedence over the provisions set down in the Service Agreement.

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Appendix A: STANDARD CONTRACTUAL CLAUSES

Processor to Controller

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)  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 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

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

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

(v) Clause 13;

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

(vii) Clause 16(e);

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

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 –

n/a

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 exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
(b) The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
(c) The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
(d) After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.

8.2 Security of processing

(a) The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature of the personal data ( ), the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

(b) The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.

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

8.3 Documentation and compliance

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

(b) The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.

Clause 9

Use of sub-processors

N/A

Clause 10

Data subject rights

The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.

Clause 11

Redress

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

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) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.

(c) 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.

(d) The Parties agree that if one Party is held liable under paragraph (c), 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.

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

Clause 13

Supervision

N/A

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

Clause 14

Local laws and practices affecting compliance with the Clauses

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

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

(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

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

15.1 Notification

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

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

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

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

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

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

15.2 Review of legality and data 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 collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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

Clause 17

Governing law

These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of Germany.

Clause 18

Choice of forum and jurisdiction

Any dispute arising from these Clauses shall be resolved by the courts of Germany.

APPENDIX

ANNEX I

A. LIST OF PARTIES

Data exporter(s): Riege (see contract pursuant to Art. 28 GDPR)

Data importer(s): Customer (see contract pursuant to Art. 28 GDPR)

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

See § 2 sub (3) of contract pursuant to Art. 28 GDPR

Categories of personal data transferred

See § 2 sub (3) of contract pursuant to Art. 28 GDPR

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.

None

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

Regularly

Nature of the processing

See service Agreement

Purpose(s) of the data transfer and further processing

See service Agreement

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

See service Agreement

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

See service Agreement