This Data Processing Addendum (including its Exhibits) (“DPA”) is incorporated into and forms an integral part of, and is subject to, the terms and conditions of the Fairgen Terms of Service available at Terms of Service and/or other terms and conditions, applicable Order, and any instructions agreed upon by the Parties (“Principal Agreement”) entered into by and between the applicable customer (“Customer”) and Fairgen Ltd. (“Fairgen”). The DPA together with the Principal Agreement shall be collectively referred to as the “Agreement”.
Fairgen and Customer are hereinafter jointly referred to as “Parties” and individually as “Party.” Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement.
All obligations in this DPA are in addition to, not in lieu of, any other contractual, statutory, and other obligations of Fairgen. Notwithstanding the foregoing, this DPA shall supersede and replace any inconsistent or conflicting language related to international transfers of Customer Personal Data in the Principal Agreement. Fairgen may update this DPA from time to time, and in that event, Fairgen will provide the Customer with applicable notice pursuant to the Principal Agreement.
1. Definitions
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Applicable Laws” means (a) European Union or Member State laws addressing any Customer Personal Data in respect of which Customer is subject to EU Data Protection Laws; and (b) any other applicable law addressing any Customer Personal Data in respect of which the Customer is subject to any other Data Protection Laws.
1.3. “Customer Personal Data” means any Personal Data Processed by Fairgen on behalf of Customer pursuant to or in connection with the Principal Agreement.
1.4. “Data Protection Laws” means (a) EU Data Protection Laws; (b) the UK GDPR; (c) the Swiss FADP, and (d) to the extent applicable, the data protection or privacy laws of any other applicable country as agreed in writing between the Parties, including the United States and Israel.
1.5. “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.
1.6. “EU SCC" or “EU Standard Contractual Clauses” mean the annex to the EU Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the council as shall be amended from time to time (including without limitation, the standard contractual clauses adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021), in all cases incorporating the Relevant Amendments (as defined above). Upon the effective date of adoption for any revised standard contractual clauses by the European Commission, all references in this DPA to the "EU SCCs” shall refer to that latest version and the parties shall cooperate to prepare such amendments to this DPA, including the Relevant Amendments, as may be required to take into account and give effect to the European Commission’s adoption of the revised standard contractual clauses. In the event of any conflict or inconsistency between the terms of this DPA and the provisions of the EU SCC (to the extent the latter has been entered into by the parties pursuant to Section 12 (Restricted Transfers) below), the provisions of the EU SCC shall prevail.
1.7. "FADP” means the Swiss Federal Act on Data Protection dated 19 June 1992 and any subsequent amendments, replacements, or supplements including any guidelines and clarifying materials published by the Swiss Federal Data Protection and Information Commissioner (FDPIC).
1.8. “GDPR” means EU General Data Protection Regulation 2016/679 and any subsequent amendments, replacements or supplements.
1.9. “Relevant Amendments" means the amendments to the EU SCC, the UK Addendum, and the Swiss Addendum identified under Annex 2 (Standard Contractual Clauses).
1.10. “Restricted Transfer” means (i) a transfer of Customer Personal Data from Customer to Fairgen; or (ii) an onward transfer of Customer Personal Data from Fairgen to a Sub Processor, or between two establishments of Fairgen, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of a legal transfer mechanism to be established under this DPA, including without limitation the applicable Standard Contractual Clauses.
1.11 “Sub Processor” means any third party (including any Fairgen Affiliate but excluding an employee of Fairgen) appointed by or on behalf of Fairgen or any Fairgen Affiliate to Process Personal Data on behalf of the Customer in connection with the Principal Agreement.
1.12. “Standard Contractual Clauses” or “SCCs” means the EU SCC, the UK Addendum, and the Swiss Addendum as defined herein, and as applicable to the transfers of Personal Data pursuant to this DPA.
1.13. “Swiss Addendum” means the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner, specifically the Federal Act on Data Protection. Upon the publication in the Federal Gazette and the entry into force of the revised Federal Act on Data Protection, this term will refer to the latter act.
1.14. “UK Addendum” means the International Data Transfer Addendum to the EU Commission standard contractual clauses issued by the UK Information Commissioner’s Office (version, B1.0, in force 21 March 2022).
1.15. “UK GDPR” means the United Kingdom’s Data Protection Act 2018 and the GDPR as adapted into law of the United Kingdom by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018.
1.16. The terms, “Data Subject,” “Member State,” “Personal Data,” “Personal Data Breach,” “Special Categories of Data,” “Process/Processing,” “Controller,” “Processor,” and “Supervisory Authority” and “Third Country” shall have the same meanings given to them in the GDPR (or another applicable Data Protection Law).
2. Processing of Customer Personal Data
2.1. This DPA shall apply with respect to Personal Data obtained by Fairgen as a result of Customer’s use of Fairgen’s Services, as described in Annex 1 (Details of Processing of Customer Personal Data) attached hereto. In connection with each Party’s rights and obligations under the Agreement, as between the Parties, Fairgen shall Process Customer Personal Data solely as a data Processor acting on behalf of Customer, and Customer shall be deemed the Controller of such Personal Data.
2.2. Fairgen shall not Process Customer Personal Data other than according to the Customer’s documented reasonable and customary instructions as specified in the Principal Agreement or this DPA, which were specifically and explicitly agreed to by Fairgen, unless such Processing is required by Applicable Laws.
Fairgen shall inform the Customer of such legal requirement before processing unless the law prohibits such action on public interest grounds.
2.3. Customer instructs Fairgen (and authorizes Fairgen to instruct each Sub Processor) to (i) Process Customer Personal Data only to the extent required for the provision of Fairgen’s Services under the Agreement; and, in particular (ii) transfer Customer Personal Data to any country or territory, all as reasonably necessary for the provision of the Services and consistent with Sections 2.1-2.2 above, Section 12 (Restricted Transfers) below, the Agreement, and in accordance with Applicable Laws.
2.4. Furthermore, Customer warrants and represents that it is and will remain duly and effectively authorized to give the instruction set out in Section 2.1 and any additional instructions as provided pursuant to the Agreement and/or in connection with the performance thereof, on behalf of itself and each relevant Customer Affiliate, at all relevant times and at least for as long as the Agreement is in effect and for any additional period during which Fairgen is lawfully processing the Customer Personal Data. In addition, Customer warrants and represents that it has obtained all permissions, consents, authorizations and approvals, including by making all notices, required for it to allow Fairgen to access and process Customer Personal Data as permitted hereunder.
2.5. Customer sets forth the details of the Processing of Customer Personal Data, as required by Article 28(3) of the GDPR in Annex 1, attached hereto.
2.6. Customer hereby represents and warrants that Customer has provided sufficient notices and obtained necessary or advisable consents required from any third-party and otherwise has the lawful basis upon which to share the Customer Personal Data, with Fairgen and its Affiliates, and to make any and all uses as otherwise contemplated under this Agreement.
3. Customer Obligations
Customer shall comply with all applicable laws in connection with the performance of this DPA. As between the Parties, Customer shall be solely responsible for compliance with applicable laws (including Data Protection Laws) regarding the collection and transfer of Customer Personal Data to Fairgen. Customer agrees not to provide Fairgen with any special categories of data, as defined in Article 9 of the GDPR, other than as provided in Annex 1.
4. Fairgen Personnel
Fairgen shall take reasonable steps to ensure that access to the Customer Personal Data is limited on a need to know/access basis, and that all Fairgen personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Customer Personal Data.
5. Security
In relation to the Customer Personal Data, Fairgen shall implement appropriate technical and organizational measures, including to the extent appropriate and applicable the measures referred to in Article 32(1) of the GDPR, to establish an appropriate level of security for the Customer Personal Data. Such security has to be sustained throughout the entire duration of this DPA and must aim to (i) ensure the ongoing confidentiality and security of Processing systems and services in connection with the Processing of the Customer’s Personal Data, and (ii) restore the availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident. In assessing the appropriate level of security, Fairgen shall consider the risks presented by Processing, paying particular attention to risks arising from a Personal Data Breach.
6. Sub Processing
6.1. Customer authorizes Fairgen and each Fairgen Affiliate to appoint (and permit each Sub Processor appointed in accordance with this Section 6 to appoint) Sub Processors in accordance with this Section 6 and any restrictions in the Agreement.
6.2. Fairgen and each Fairgen Affiliate may continue to use those Sub Processors already engaged by Fairgen or any Fairgen Affiliate as of the date of this DPA as identified in Annex 3 to this DPA (List of Authorized Sub Processors), including for the purpose of cloud hosting services by reputable Sub Processors, as well as any Sub Processors whom Customer requested Fairgen to use.
6.3. Fairgen may appoint new Sub Processors and shall give prior notice of the appointment of any new Sub Processor (e.g., by e-mail), whether by general or specific reference to such Sub Processor (e.g., by name or type of service), including relevant details of the Processing to be undertaken by the new Sub Processor. If Customer notifies Fairgen in writing of any objections (on reasonable grounds) to the proposed appointment within seven (7) days of such notice, Fairgen shall not appoint the proposed Sub Processor for the Processing of Customer Personal Data until reasonable steps have been taken to address the objections raised by Customer, and Customer has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Customer’s reasonable objections then Customer or Fairgen may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub Processor without bearing liability for such termination. Otherwise, Customer shall be deemed to have accepted such appointment.
6.4. With respect to each new Sub Processor, Fairgen shall:
6.4.1. take reasonable steps before the Sub Processor first Processes Customer Personal Data, to ensure that the Sub Processor is committed to providing the level of protection for Customer Personal Data required by the Agreement;
6.4.2. ensure that the arrangement between Fairgen and the Sub Processor is governed by a written contract, including terms which offer a materially similar level of protection for Customer Personal Data as those set out in this DPA and meet the requirements of Data Protection Laws; and
6.4.3. remain fully liable to Customer for the performance of any and all Processing of Customer Personal Data performed by Sub Processor in connection with the specific Processing activities performed by Sub Processor on behalf of Customer.
7. Data Subject Rights
7.1. Customer shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Customer Personal Data, etc.). Fairgen shall reasonably endeavor to assist Customer, to fulfil Customer's said obligations with respect to such Data Subject requests, as applicable.
7.2. Fairgen shall:
7.2.1. unless otherwise required under applicable laws, promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
7.2.2. ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Fairgen is subject, in which case Fairgen shall, to the extent permitted by Applicable Laws, inform Customer of that legal requirement before it responds to the request.
8. Personal Data Breach
8.1. Fairgen shall notify Customer without undue delay upon Fairgen becoming aware of a Personal Data Breach either affecting or related to Fairgen’s or Fairgen’s Affiliates Processing of such Customer Personal Data. In such event, Fairgen shall provide Customer with information (to the extent in Fairgen’s possession) to assist Customer to meet any obligations to inform Data Subjects or data protection authorities of the Personal Data Breach under the Data Protection Laws.
8.2. At the written request and sole expense of the Customer, Fairgen shall reasonably cooperate with Customer and take such commercially reasonable steps as are agreed by the Parties or necessary under Privacy Protection Laws to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
At the written request of the Customer, Fairgen and each Fairgen Affiliate shall provide reasonable assistance to Customer, at Customer's expense, with any data protection impact assessments or prior consultations with Supervising Authorities or other competent data privacy authorities, as required under any applicable Data Protection Laws, in relation to Processing of Customer Personal Data by Fairgen.
10. Deletion or return of Customer Personal Data
10.1. Subject to Section 10.2 below, Fairgen shall promptly, but no later than sixty (60) days of the date of cessation of any Services involving the Processing of Customer Personal Data, delete or pseudonymize all copies of such Customer Personal Data, except any copies that are authorized to be retained under this DPA or required to be retained in accordance with applicable law and/or regulation.
10.2. Subject to the Agreement, Fairgen may retain Customer Personal Data to the extent authorized or required by applicable laws, provided that Fairgen shall ensure the confidentiality of all such Customer Personal Data and shall ensure that it is only Processed for such legal purpose(s).
10.3. Upon Customer’s prior written request, Fairgen shall provide written certification to Customer that it has complied with this Section 10.
11. Audit Rights
11.1. Upon prior written request from the Customer, subject to Sections 11.2 and 11.3, and only to the extent required under applicable Data Protection Laws, Fairgen shall coordinate to make available to a reputable independent auditor mandated by Customer such information necessary to reasonably demonstrate compliance with this DPA, and allow for audits, including inspections by such reputable auditor in relation to the Processing of the Customer Personal Data by Fairgen, provided that such third-party auditor shall be subject to Fairgen standard confidentiality agreement.
11.2. Provisions of information and audits shall be at Customer’s sole expense and may only arise under Section 11.1, but only to the extent that the Agreement does not otherwise give Customer any information and audit rights that meet the relevant requirements of the applicable Data Protection Laws. In any event, all audits or inspections shall be subject to the terms of the Agreement, and to Fairgen's obligations to third parties, including with respect to confidentiality.
11.3. Customer shall give Fairgen reasonable prior written notice of any audit or inspection to be conducted under Section 11.1 and shall not cause (and ensure that each of its mandated auditors does not cause) any damage, injury or disruption to Fairgen’s premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection.
12. Restricted Transfers
12.1. Transfer of Customer Personal Data shall be carried out by Fairgen in accordance with Applicable Laws. Where Customer’s approval for such transfer is required, the approval shall be deemed granted for Sub Processors enumerated in the table Annex 3 attached hereto. Fairgen undertakes to ensure that the transfer of personal data outside the EU / EEA, Switzerland or the United Kingdom, to any country that has not been deemed adequate by the EU commission, is carried out on the basis of the applicable Standard Contractual Clauses.
12.2. Where one Party is subject to the GDPR and they transfer Personal Data to the other Party who has its place of business in a Third Country, the terms of the transfer between the Parties shall be governed by the EU Standard Contractual Clauses which are incorporated herein by reference and considered duly executed between the Parties upon execution of this DPA, but only to the extent applicable to the transfer. The particular roles of the Parties, the applicable extent, and the relevant modules of the EU Standard Contractual Clauses that will apply to such transfers are defined in Section A of Annex 2. Section A of Annex 2 includes all necessary information that is required in the Appendix to the EU Standard Contractual Clauses.
12.3. Where one Party transfers Personal Data from the United Kingdom to the other Party who has its place of business in a Third Country, the terms of the transfer between the Parties shall be governed by the UK Addendum that is incorporated herein by reference and considered duly executed between the Parties upon execution of this DPA, as applicable to the transfer. The Parties agree that the UK Addendum is appended to the EU Standard Contractual Clauses as modified (including the selection of modules and disapplication of optional clauses) by Section 12.2 and Section A of Annex 2. Section B of Annex 2 includes all necessary information that is required in Part 1 of the UK Addendum.
12.4. Where one Party transfers Personal Data from Switzerland to the other Party who has its place of business in a Third Country, the terms of the transfer between the parties shall be governed, to the extent applicable by the Swiss Addendum which is incorporated herein by reference and considered duly executed between the parties upon execution of this DPA. The Parties agree that the Swiss Addendum is appended to the EU Standard Contractual Clauses as modified by Section 12.2 and Section C of Annex 2. Section C of Annex 2 includes all necessary information that is required in Part 17 of the Swiss Addendum.
13. General Terms
13.1. Governing Law and Jurisdiction. The Parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity. This DPA and all non-contractual or other obligations arising out of or in connection therewith are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
13.2. Order of Precedence. Nothing in this DPA reduces Fairgen’s obligations under the Agreement in relation to the protection of Personal Data or permits Fairgen to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Principal Agreement, this DPA shall prevail solely with respect to the subject matter of this DPA and solely if such conflict or inconsistency originates from the requirements of Article 28 of the GDPR (except where explicitly agreed otherwise in writing, signed on behalf of the Parties). This DPA is not intended to, and does not in any way limit or derogate from Customer’s own obligations and liabilities towards Fairgen under the Agreement, and/or pursuant to the GDPR or any law applicable to Customer, in connection with the collection, handling and use of Personal Data by Customer or its Affiliates or other processors or their sub-processors, including with respect to the transfer or provision or Personal Data to Fairgen and/or providing access thereto to Fairgen.
13.3. Changes in Data Protection Laws.
13.3.1. Customer may by at least forty-five (45) calendar days' prior written notice to Fairgen, request in writing any variations to this DPA if they are required, as a result of any change in, or decision of a competent authority under any applicable Data Protection Law, to allow Processing of those Customer Personal Data to be made (or continue to be made) without breach of that Data Protection Law. If Customer gives notice with respect to its request to modify this DPA under this Section 13.3.1:
13.3.2. Fairgen shall make commercially reasonable efforts to accommodate such modification request; and Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Fairgen to protect the Fairgen against additional risks, or to indemnify and compensate Fairgen for any further steps and costs associated with the variations made herein.
13.3.3. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer's notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within thirty (30) days, then Customer or Fairgen may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof).
13.4. Severance. Should any provision of this DPA be deemed invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
This Annex 1 includes certain details of the Processing of Customer authorized user Personal Data as required by Article 28(3) or 28(4) GDPR.
List of the Parties:
Data Exporter: Customer.
Address: The address associated with the Customer’s account at Fairgen’s Services, or as otherwise specified in the Principal Agreement.
Contact person’s name, position, and contact details: Customer’s contact details associated with Customer’s account at Fairgen’s Services or as otherwise specified in the Principal Agreement.
Role: Controller.
Data Importer: Fairgen Ltd.
Address: Shlomo Ibn Gvirol 30 Tel Aviv, Israel.
Contact person’s name, position, and contact details: Fairgen’s contact details as set forth in the Principal Agreement.
Role: Processor.
Subject Matter and Duration of the Processing of Customer Personal Data. The subject matter and duration of the Processing of the Controller Personal Data are set out in the Agreement.
The Nature and Purpose of the Processing of Customer Personal Data: rendering Fairgen’s Services, as detailed in the Principal Agreement.
The types of Customer Personal Data to be Processed are as follows: Information included in the materials provided by the Customer for the performance of the Services, subject to the Agreement.
To the parties’ knowledge, no sensitive data is transferred.
The categories of Data Subjects to whom the Customer Personal Data relates are as follows:
Customer’s personnel that are using the Services pursuant to the Agreement; Third parties that may be included in Customer’s materials provided to Fairgen for the performance of the Services.
The obligations and rights of Customer: The obligations and rights of Customer and Customer Affiliates are set out in the Agreement and this DPA.
A. EU Standard Contractual Clauses
For the purposes of the EU Standard Contractual Clauses, the Parties agree on the following:
(i) MODULE ONE and MODULE FOUR language shall be deleted.
(ii) Clause 7 (Docking Clause) does not apply.
(iii) For Clause 9 (Use of sub-processors) (a) (only for MODULE TWO: Transfer controller to processor and MODULE THREE: Transfer processor to processor), Option 1 applies with a 30-day time period.
(iv) The optional paragraph under Clause 11 (Redress) (a) does not apply.
(v) For Clause 17 (Governing Law) (only for MODULE TWO: Transfer controller to processor and MODULE THREE: Transfer processor to processor), Option 1 applies. The EU Standard Contractual Clauses shall be governed by the law of Ireland.
(vi) For Clause 18 (Choice of Forum and Jurisdiction), any dispute arising from the EU Standard Contractual Clauses shall be resolved by the courts of Ireland.
The following modules of the EU Standard Contractual Clauses apply to the transfers under this DPA:
☐ MODULE TWO: Transfer controller to processor
☐ MODULE THREE: Transfer processor to processor
For the avoidance of doubt, modules not checked above do not apply to the transfers under this DPA.
B. UK Addendum
C. Swiss Addendum
Insofar as the data transfer under the DPA is governed by the FADP, provided that none of these amendments will have the effect or be construed to amend the Standard Contractual Clauses in relation to the processing of Personal Data under to the GDPR, the following shall apply:
1. the FDPIC will be the competent supervisory authority, in Annex I.C under Clause 13 of the Swiss Addendum;
2. the applicable law for contractual claims and place of jurisdiction for actions between the parties under Clauses 17 and 18 of the Standard Contractual Clauses shall be as set forth in the Standard Contractual Clauses, provided that the term “member state” must not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18c;
3. references to the “GDPR” should be understood as references to the “FADP;” and
4. where the FADP protects legal entities as data subjects, the Swiss Addendum will apply to data relating to identified or identifiable legal entities.