Bodygram Platform Agreement

Last Modified: January 11, 2024

This Bodygram Platform Agreement (this “Agreement”) is a binding contract between you (“you” or “your”) and Bodygram Inc. (“Company,” “we,” or “us”). This Agreement governs your access to and use of Bodygram Platform (the “Platform”) application programming interfaces and its features.

In order to comply with the General Data Protection Regulation (GDPR) in the European Union, the Parties agree to comply with the Standard Contractual Clauses (SCC) accordingly and individually to the respective contractual partner as attached in Annex A. If you would like to implement these clauses according to your situation as a data exporter, please contact us at legal@bodygram.com. Our legal team will guide you through the process to ensure that the SCCs are adapted to your specific situation and comply with all applicable regulations.

BY CREATING A BODYGRAM PLATFORM ACCOUNT, OR BY ACCESSING OR USING ANY API AND/OR THE FEATURES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE ANY API OR THE FEATURES.

1. Definitions.

(a) “Account” means the organization account created by you through our website to gain access to our APIs and the Features. Company may limit the number of users on the Account in its sole discretion.

(b) “API” means a Bodygram Platform application programming interface and any Documentation or other API materials made available by Company at platform.bodygram.com. Company may make available from time-to-time one or more APIs through its website, and this Agreement applies to each API you select to use or purchase through your Account.

(d) “Body Images” means any images, renderings or other representations of an individual or part thereof made available to you through your Account for use in Your Applications.

(e) “Company Marks” means Company’s proprietary trademarks, trade names, branding, or logos made available for use in connection with an API pursuant to this Agreement.

(f) “Company Offering” means Company’s AI body measurement technology described at bodygram.com.

(g) ” Documentation” means the API and/or Features documentation described at platform.bodygram.com from time to time.

(h) “Features” means the Platform web application, the web-based scan flow software or other software development kits (SDKs) that can be used by you or integrated into Your Applications (including Body Scan) and any Documentation or other materials made available by Company at platform.bodygram.com.

(i) “Body Scan” means the function that allows you to perform and review scans directly within the Platform (and your smartphones), bypassing the need for developing your own applications.

(j) “Your Applications” means any applications developed by you to interact with any API.

2. Account.

To use any API and/or the Features, you must create or update an Account. To create an Account and access any API, the Features or the Company Offering, you must be at least 18 years old (or the equivalent minimum age in the country of residence) and not barred from using such API and/or the Features under applicable law. You may not create more than one Account to circumvent the free trial limitations.

3. API Keys; License Grants.

Subject to and conditioned on your compliance with all terms and conditions set forth in this Agreement, (a) we will issue you an API Key for each API you select in or purchase with your Account to use such API solely for your internal business purposes in developing Your Applications that will communicate and interoperate with the Company Offering; provided, during any free trial period for such API, such use shall be strictly limited to internal testing purposes and may not be used for commercial purposes, and (b) we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to: (i) use the Features and the Body Images solely for your internal business purposes, including in developing Your Applications that will communicate and interoperate with the Company Offering; provided, during any free trial period for the Features, such use shall be strictly limited to internal testing purposes and may not be used for commercial purposes; and (ii) display certain Company Marks and/or the Body Images in compliance with usage guidelines that we may specify from time to time solely in connection with the use of the API and/or Features and the Applications and not in connection with the advertising, promotion, distribution, or sale of any other products or services. You acknowledge that there are no implied licenses granted under this Agreement. We reserve all rights that are not expressly granted. You may not use any API and/or the Features or any Company Mark and/or the Body Images for any other purpose without our prior written consent. You must obtain each API Key through the registration process available at platform.bodygram.com to use and access such API and/or the Features. You may not share your API Keys with any third party, must keep your API Keys and all log-in information secure, and must use the API Keys as your sole means of accessing each API. Your API Keys may be revoked at any time by us.

4. Use Restrictions.

Except as expressly authorized under this Agreement, you may not:

(a) copy, modify, or create derivative works of any API, the Features or the Body Images, in whole or in part;

(b) rent, lease, lend, sell, license, sublicense (except as an integral component of Your Application to users thereof), assign, distribute, publish, transfer, or otherwise make available any API, the Features or the Body Images;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of any API, the Features, the Company Offering or the Platform, in whole or in part;

(d) remove any proprietary notices from any API, the Features or the Body Images;

(e) use any API, the Features or the Body Images in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;

(f) combine or integrate any API, the Features or the Body Images with any software, technology, services, or materials not authorized by Company;

(g) query any statistical information and store it in your own database or serve such queried information it to another person without using the Company Offering;

(h) design or permit Your Applications to disable, override, or otherwise interfere with any Company-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;

(i) use any API, the Features or the Body Images in any of Your Applications to replicate or attempt to replace the user experience of the Company Offering or to create a similar product or service to the Platform or Company’s other products; or

(j) attempt to cloak or conceal your identity or the identity of Your Applications when requesting authorization to use any API or the Features.

You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on our website from time to time. In addition, you will not use any API, the Features or the Body Images in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, sexual, exploitative, abusive, or otherwise offensive content, products or services, stolen products, and items used for theft, hazardous materials, or any illegal activities. YOU MAY NOT USE ANY API OR THE FEATURES IN CONNECTION WITH OR TO PROMOTE ANY PRODUCTS OR SERVICES IN OR RELATED TO THE MATTRESS INDUSTRY IN JAPAN.

5. Your Applications; Interaction with the Platform.

You agree to monitor the use of Your Applications for any activity that violates applicable laws, rules, and regulations or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of Your Applications from further use of Your Applications. You also agree to monitor and manage the direct interactions within your account with any APIs and the Features via the Platform (including but not limited to using Body Scan), ensuring compliance with the same standards. You agree to provide a resource for users of Your Applications to report abuse of Your Applications. As between you and us, you are responsible for all acts and omissions of your end users in connection with Your Application and their use of any API, the Features and/or the Body Images, if any. You agree that you are solely responsible for posting any privacy notices and obtaining any consents from your end users required under applicable laws, rules, and regulations for their use of Your Applications and their interaction with the APIs and Features via the Platform. All use by you of the Company Marks and the Body Images, if any, will comply with any usage guidelines that we may specify from time to time. You agree that your use of the Company Marks and Body Images in connection with this Agreement will not create any right, title, or interest in or to the Company Marks or Body Images in favor of you, and all goodwill associated with the use of the Company Marks and Body Images will inure to the benefit of Company.

6. No Support; Updates.

This Agreement does not entitle you to any support for any API or the Features. You acknowledge that we may update or modify each API, the Features and/or the Body Images from time to time and at our sole discretion (in each instance, an “Update”), and may require you to obtain and use the most recent version of each API, the Features and/or the Body Images. Updates may adversely affect how Your Applications communicate with the Company Offering. You are required to make any changes to the Applications that are required for integration as a result of such Update at your sole cost and expense. Your continued use of any API, the Features and/or the Body Images following an Update constitutes binding acceptance of the Update.

7. Fees.

This Section 7 applies if you purchase usage capacity (beyond the free transaction limits) through the Platform pricing plan available on our website or by contacting Company’s sales department at sales@bodygram.com in the case of usage capacity beyond that available under the Platform pricing plan.

(a) The Features and certain parts of each API are provided to you without charge up to the transaction limits described in the Documentation.

(b) You agree to pay Company the fees in accordance with the payment terms set forth in the Platform pricing plan. For purchases not covered under the Platform pricing plan, Company will issue an electronic bill to you for all charges accrued above the transaction limits based on your use of the Service during the previous month. You will pay all fees specified in the invoice, including the invoice’s specified currency and payment terms. Company’s measurement of your use of any API is final.

(c) In association with your purchase of API usage, you are responsible for all applicable government-imposed taxes, except for taxes based on Company’s net income, net worth, employment, and assets (including personal and real property) (“Taxes”), and you will pay Company for each API without any reduction for Taxes. If Company is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Company with a timely and valid tax exemption certificate authorized by the appropriate taxing authority.

(d) To the fullest extent permitted by law, you waive all claims relating to fees unless claimed within sixty days after charged (this does not affect any of your rights with your credit card issuer). Refunds (if any) are at Company’s discretion and will only be in the form of credit for the applicable API. Nothing in this Agreement obligates Company to extend credit to any party.

(e) Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Company reserves the right to suspend your access to each API and/or the Features for any late payments without incurring any obligation or liability to you or any other person by reason of such prohibition of access to such API and/or the Features.

8. Collection and Use of Your Information.

We may collect certain information through each API, the Features or the Licensor Offering about you or any of your employees, contractors, or agents. By accessing, using, and providing information to or through any API, the Features or the Company Offering, you consent to all actions taken by us with respect to your information in compliance with the then-current version of our privacy policy and data protection requirements, available at https://bodygram.com/en/bodygram-platform-privacy-policy. Notwithstanding anything to the contrary in this Agreement, Company may collect, analyze, and disclose or share anonymized data relating to the provision, use, and performance of the Company Offering in accordance with applicable data protection laws for the purposes of enhancing and improving the Company Offering, and providing insights for the development of the Company’s business activities. Anonymized data under this clause refers to data that can’t be used to identify specific individuals or reveal information about you. Nothing in this clause shall permit Company to process personal data in a manner that would otherwise violate applicable data protection laws or the terms of this Agreement.

9. Intellectual Property Ownership; Feedback.

You acknowledge that, as between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to each API, the Features, the Company Offering, the Company Marks, and the Body Images and (b) you own all right, title, and interest, including all intellectual property rights, in and to Your Applications, excluding the aforementioned rights in clause (a). You will use commercially reasonable efforts to safeguard each API, the Features, Company Marks and Body Images (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify us if you become aware of any infringement of any intellectual property rights in any API, the Features, Company Marks and Body Images and will fully cooperate with us, in any legal action taken by us to enforce our intellectual property rights. If you or any of your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to any API, the Features, the Company Offering, the Company Marks, or the Body Images, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and on behalf of your employees, contractors, and agents, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

10. Confidentiality; Proprietary Rights.

Each party (the “Receiving Party”) acknowledges that in the course of this Agreement, it will have access to confidential and proprietary information (“Proprietary Information”) of the other party (the “Disclosing Party”). For us, Proprietary Information includes non-public details concerning the API’s features, functionality, and performance. For you, Proprietary Information comprises non-public data you provide to us (“Customer Data”) to enable the provision of our services. The Receiving Party commits to: (i) taking commercially reasonable measures to protect the Disclosing Party’s Proprietary Information; and (ii) not using (except as necessary for the provision of the services or as explicitly permitted in this Agreement) or disclosing to any third party the Proprietary Information of the Disclosing Party. The Receiving Party’s obligations under this clause will not apply to information that: (a) becomes part of the public domain without breach of this Agreement; (b) was in the Receiving Party’s possession or known to it prior to its receipt from the Disclosing Party; (c) is rightfully received from a third party without a duty of confidentiality; (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Proprietary Information; or (e) must be disclosed under law, provided that the Receiving Party gives the Disclosing Party prompt notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

11. Third-Party Materials.

The Company Offering may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

12. Open-Source Licenses.

The Features may include software components that are subject to an open-source license agreement, including any software available under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (“Open-Source Components”). Any use of the Open-Source Components by you is governed by, and subject to, the terms and conditions of such open-source license agreements.

13. Disclaimer of Warranties.

THE API, THE FEATURES, COMPANY MARKS AND THE BODY IMAGES ARE PROVIDED “AS IS” AND COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT ANY API, THE FEATURES, COMPANY MARKS OR BODY IMAGES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

14. Indemnification.

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of any API, the Features, Company Marks, or Body Images, (b) your breach of this Agreement, and (c) Your Applications, including any end user’s use thereof. In the event we seek indemnification or defense from you under this provision, we will promptly notify you in writing of the claim(s) brought against us for which we seek indemnification or defense. We reserve the right, at our option and in our sole discretion, to assume full control of the defense of claims with legal counsel of our choice. You may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by us or bind us in any manner, without our prior written consent. In the event we assume control of the defense of such claim, we will not settle any such claim requiring payment from you without your prior written approval, which shall not be unreasonably withheld, conditioned or delayed.

15. Limitations of Liability.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (a) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE ANY API AND/OR THE FEATURES; OR (b) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF USD 100 EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO SECTION 7(d), ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM OR SUCH CLAIM IS PERMANENTLY BARRED.

16. Term and Termination.

The term of this Agreement commences when you acknowledge your acceptance of this Agreement by checking the “I AGREE” box and will continue in effect until terminated as set forth in this Section 16. We may immediately terminate or suspend this Agreement, any rights granted herein, and/or your licenses under this Agreement, in our sole discretion at any time and for any reason, by providing notice to you or revoking access to each API, the Features and Company Marks. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You may terminate this Agreement at any time by ceasing your access to and use of each API, the Features and Company Marks. Upon termination of this Agreement for any reason all licenses and rights granted to you under this Agreement will also terminate and you must cease using, destroy, and permanently erase from all devices and systems you directly or indirectly control all copies of each API, the Features and Company Marks. Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination. Termination will not limit any of Company’s rights or remedies at law or in equity.

17. Export Regulation.

Each API and/or the Features may be subject to export control laws. You will not, directly or indirectly, export, re-export, or release any API and/or the Features to, or make any API and/or the Features accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making any API and/or the Features available.

18. Modifications.

You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time. You will be notified of modifications through notifications or posts on platform.bodygram.com or direct email communication from us. You will be responsible for reviewing and becoming familiar with any such modifications. Your continued use of any API and/or the Features after the effective date of an updated version of the Agreement will indicate your acceptance of this Agreement as modified.

19. Governing Law and Jurisdiction.

This Agreement shall be governed by and construed in accordance with the laws of New York, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. The federal courts of the United States or the courts of the State of New York in each case located in the city of New York and Borough of Manhattan shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement. Should legal action arise concerning this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys’ fees and related costs, in addition to any other relief which may be awarded by any court or other tribunal of competent jurisdiction.

20. Arbitration.

At our sole discretion, we may require you to submit any disputes arising under this Agreement, including disputes arising from or concerning its interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law. To the maximum extent permitted by applicable law, you agree to only bring disputes in an individual capacity and shall not: (a) seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or (b) consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.

21. Miscellaneous.

This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to legal@bodygram.com. You hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to each API and/or the Features. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.

Annex A:

STANDARD CONTRACTUAL CLAUSES

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”).

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

(iii) Clause 9 - Clause 9(a), (c), (d) and (e);

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

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 - 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 - Optional

Deleted

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 (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:

(i) 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;

(ii) 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;

(iii) 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

(iv) 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) 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 1 month 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 subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(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:

(i) 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;

(ii) 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 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). [For Module Three: The data exporter shall forward the notification to the controller.]

(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 [for Module Three: , if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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.). [For Module Three: The data exporter shall forward the information to the controller.]

(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. [For Module Three: The data exporter shall make the assessment available to the controller.]

(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

[OPTION 2 (for Modules Two and Three): These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Germany.

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 Germany.

(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.

(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) This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.

(3) 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.

(4) 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.

(5) See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.

(6) 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 purposes of these Clauses.

(7) This includes whether the transfer and further processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences.

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

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

(10) That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.

(11) The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.

(12) 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.

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:

Address:

Contact person’s name, position and contact details:

Activities relevant to the data transferred under these Clauses:

Signature and date: …

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: Bodygram Inc.

Address: 850 New Burton Rd., STE 201 Dover, DE 19904, United States of America

Contact person’s name, position and contact details:

Activities relevant to the data transferred under these Clauses: The Data Importer provides APIs along with other features, including web applications, web-based scan flow software, and other software development kits (SDKs) available on Bodygram Platform. These can be integrated into the Data Exporter’s website, mobile applications, or other systems. The provided APIs and features accept inputs such as age, gender, height, weight, front and side photos, and, in return, deliver body data to the Data Exporter.

Signature and date: …

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Users, visitors, who use the services which utilize Bodygram Platform’s APIs and/or its features.

Categories of personal data transferred

IP address

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.

Height, Weight, Age, Gender, Body measurements, Posture analysis, 3D avatar, Photo of a user (front and side)

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

Continuous as long as the service is provided by the Data exporter

Nature of the processing

Obtaining the data via the APIs and/or its features, analysing the data and information, storing the data as long as required for the purpose of providing body measurements, posture analysis, 3D avatar etc.

Purpose(s) of the data transfer and further processing

The purpose is to process the personal data in order to provide body measurements, etc in order to achieve the Data Exporter’s own business objectives.

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

Photos will be retained for the duration of the contract or until the Data Exporter utilizes the provided API to delete them in accordance with their business requirements. And other personal data will be stored in an anonymized form to prevent direct identification of individuals.

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

Please see Annex III per respective sub-processor.

C. COMPETENT SUPERVISORY AUTHORITY

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

ANNEX II

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

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

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.

Measures of encryption of personal data: Data is encrypted in transit and at rest, utilizing industry standard and accepted state-of-the-art encryption technologies.

Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident: Data is hosted by Amazon Web Services (“AWS”) which provides redundancy across multiple availability zones.

Measures for user identification and authorization: Bodygram’s employees are required to use unique user access credentials, passwords and multi-factor authentication for authorization. Access to personal data requires approval prior to provisioning and access is promptly removed upon role change or termination. Employees access personal data as necessary to provide the services under the terms, to provide customer support upon request from a customer, or to comply with the law or a binding order of a governmental body.

Measures for ensuring physical security of locations at which personal data are processed: The Services operate on AWS and are protected by the physical, technical, organizational, and administrative controls of Amazon. Detailed information about AWS security is available at https://aws.amazon.com/security/.

Measures for ensuring events logging: Production infrastructure log activities are centrally collected and are secured in an effort to prevent tampering and are monitored for anomalies.

Measures for ensuring system configuration, including default configuration: Changes to its platform, applications, and production infrastructure are evaluated in a manner that minimizes risk through multiple internal design reviews before new services and changes to the production environment are deployed.

Measures for internal IT and IT security governance and management: Information security policies and standards are reviewed and approved by top management and are made available to all employees. All employees are required to take annual security training.

Measures for ensuring data minimisation and ensuring erasure: Any personal identifiers will be erased and deleted. This includes the IP address, any cookie or identifier set for the usage of the widget or any other identifier in the intercourse of the widget-use. Previous personal data like age, weight, height, gender is anonymized.

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

Bodygram Japan K.K. has implemented the same technical and organizational measures as Bodygram Inc. Additionally, Bodygram Japan K.K. is certified for PrivacyMark System that is in compliance with Japan Industrial Standards (JIS Q 15001). Detailed information about PrivacyMark is available at https://privacymark.org/about/outline_and_purpose.html.

ANNEX III

LIST OF SUB-PROCESSORS

EXPLANATORY NOTE:

This Annex must be completed for Modules Two and Three, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

The controller has authorised the use of the following sub-processors:

1. Name: Bodygram Japan K.K.

Address: Bizflex Hamamatsucho 8F, 2-12-12 Hamamatsucho, Minato-ku, Tokyo 105-0013, Japan

Contact person’s name, position and contact details: Toshihiro Nakajima, Director, toshi@bodygram.com

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): Bodygram Japan K.K. processes personal data as for the purpose of troubleshooting within the widget. In the course of that Bodygram may process the following personal data of users: IP-address, unique identifiers within the widget, user data, content data (e.g., body measurements) if necessary for troubleshooting.

2. Name: Amazon Web Services, Inc.

Address: 410 Terry Ave. N., Seattle, WA 98109-5210, United States

Contact person’s name, position and contact details: Amazon Web Services, Inc., 410 Terry Avenue North, Seattle, WA 98109-5210, ATTN: AWS Legal

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): Cloud hosting and infrastructure.

3. Name: Google LLC (Google Cloud Platform)

Address: 1600 Amphitheatre Parkway Mountain View, CA 94043 United States

Contact person’s name, position and contact details: https://cloud.google.com/contact

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Cloud hosting and infrastructure.