Terra Data Processing Addendum

Thanks for using Terra! Terra is a platform developed by Verily, Microsoft and The Broad Institute that enables Users to curate and publish datasets, discover and access data, find and leverage tools, and collaborate with others.

To the extent you access Terra using an Azure account, Microsoft processes your personal data in Azure as described in the Microsoft Universal License Terms for Online Services, including, as applicable, the Microsoft Privacy Statement.

To the extent you access Terra using a Google Cloud Platform account, the terms of your separate agreement with Google will apply to the processing of your personal data in Google Cloud Platform. To the extent you access Terra through a Verily product or offering, the terms of your separate agreement with Verily will apply to the processing of your personal data through such Verily product or offering.

To the extent GDPR applies to The Broad Institute’s processing of any of your Content Connected to Terra, you and we agree that the Data Protection Addendum applies to such processing of any personal data included in your Content.

To the extent your access to or use of Terra involves the use of third-party services or products that are not provided by Verily, Microsoft or The Broad Institute (such as your local hardware devices, your connectivity provider, your cloud services providers, among others) then you will be responsible for those products and services, and for complying with your arrangements with their suppliers.

This “DPA” forms part of the Terra Platform Terms of Service and/or other services agreement(s) between the User and The Broad Institute (the “Agreement”) and sets forth the obligations of the User and The Broad Institute with respect to the Processing of Terra Personal Data in connection with the Services.

In the event of a conflict or inconsistency between the Agreement and this DPA, this DPA shall prevail, and the provisions of this DPA supersede any conflicting provisions of the Terra Privacy Policy that otherwise may apply to the Processing of Terra Personal Data. In the event of a conflict or inconsistency between any applicable Standard Contractual Clauses and this DPA, when the Standard Contractual Clauses are applicable the Standard Contractual Clauses shall prevail.

THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:

1. Definitions; Interpretation

1.1. In this DPA the following words and phrases shall have the following meanings, unless inconsistent with the context or as otherwise specified:

1. "Affiliate” means in relation to a body corporate: (a) any subsidiary of that body corporate; (b) any direct or indirect holding company of that body corporate; and (c) any subsidiary of any such holding company.
2. “Controller” has the meaning given to it in the Data Protection Laws.
3. “Data Protection Laws” means the data protection and privacy legislation in force from time to time which is applicable to The Broad Institute and the User in relation to the provision of the Services, including: (a) the GDPR; (b) the UK GDPR; and (c) any legislation and/or regulation which transposes, amends, replaces, re-enacts or consolidates any of them.
4. “Data Protection Regulator” means an independent public authority that is responsible for monitoring and enforcing the Data Protection Laws.
5. “Data Subject” has the meaning given to it in the Data Protection Laws.
6. “EEA” means the European Economic Area.
7. “EEA Standard Contractual Clauses” means the Standard Contractual Clauses set out in the European Implementing Decision (EU) 2021/914 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, as updated, amended, replaced or superseded from time to time by the European Commission.
8. “GDPR” means 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 and repealing Directive 95/46/EC (General Data Protection Regulation).
9. “Personal Data” has the meaning given to it in the Data Protection Laws.
10. “Processing” has the meaning given to it in the Data Protection Laws.
11. “Processor” has the meaning given to it in the Data Protection Laws.
12. “Restricted Transfer” means a transfer of Terra Personal Data from the User to The Broad Institute in circumstances where such transfer would be prohibited by the Data Protection Laws in the absence of the Standard Contractual Clauses.
13. “Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Terra Personal Data while Processed by The Broad Institute as a Processor or Subprocessor.
14. “Services” means any goods or services that The Broad Institute provide to or for the User either (a) under one or more SOW entered under the Agreement; or (b) if no SOW has been entered under the Agreement, under the Agreement itself.
15. “SOW” means a statement of work.
16. “Standard Contractual Clauses” means the EEA Standard Contractual Clauses or the EEA Standard Contractual Clauses as amended by the UK IDTA, as applicable to a Restricted Transfer or other additional required clauses as applicable now or in the future.
17. “Subprocessor” has the meaning given to it in the Data Protection Laws.
18. “Terra Personal Data” means the Personal Data described in Annex I.B to this DPA, together with any additional Personal Data made available to The Broad Institute by or on behalf of the User, pursuant to the Agreement or to which The Broad Institute may receive, have access to or Process from time to time in performing the Services.
19. “UK” means the United Kingdom.
20. “UK GDPR” means the GDPR as incorporated into UK law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (each as amended, superseded and replaced from time to time).
21. “UK IDTA” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018;

1.2. All capitalized terms that are not expressly defined in the DPA shall have the meanings given to them in the Agreement. Any examples in this DPA are illustrative and not the sole examples of a particular concept.

1.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4. Schedule 1 forms part of this DPA and shall have effect as if set out in the full body of this DPA. Any reference to this DPA includes Schedule 1.

2. Roles of the Parties; Controller Obligations

2.1. The User and The Broad Institute acknowledge and agree that the User is the Controller and The Broad Institute is the Processor in relation to Terra Personal Data that The Broad Institute Processes on the User’s behalf in the course of providing the Services, except: (a) when the User acts as a Processor of Personal Data, in which case The Broad Institute is a Subprocessor; or (b) as stated otherwise in the Agreement or this DPA.

2.2. The subject-matter, duration, nature and purposes of the Processing of Terra Personal Data by The Broad Institute, the categories of Terra Personal Data and the categories of Data Subjects to which Terra Personal Data relate are set out in Annex 1.B to Schedule 1 of this DPA.

2.3. To the extent that The Broad Institute Processes Terra Personal Data for business operations incidental to providing the Services to the User, The Broad Institute shall comply with the obligations of an independent Controller under the Data Protection Laws in relation to such Processing.

2.4. The User must comply with all laws and regulations applicable to its use of the Services, including laws related to biometric and genomic data, confidentiality of communications and the Data Protection Laws. For the avoidance of doubt: (a) The Broad Institute does not determine whether Terra Personal Data includes information, including Personal Data, subject to any specific law or regulation; and (b) the User is responsible for determining whether the Services are appropriate for storage or Processing of information, including Personal Data, subject to any specific law or regulation.

2.5. The User warrants that: (a) Terra Personal Data it has provided to the Supplier have been and shall at all times be collected and Processed by the User in accordance with the Data Protection Laws; and (b) it shall not perform any of its obligations under the Agreement or this DPA in such a way as to cause The Broad Institute to breach any of its obligations under the Data Protection Laws.

3. Instructions for Processing

3.1. When The Broad Institute acts as the Processor or the Subprocessor of Terra Personal Data, it shall Process such Terra Personal Data only on documented instructions from the User, unless it is required to Process Terra Personal Data by applicable law to which The Broad Institute is subject, in which case it shall inform the User of the legal requirement unless that law prohibits The Broad Institute from providing such information to the User.

3.2. The User agrees that the Agreement, this DPA and the Terra Privacy Policy are the User’s complete documented instructions to The Broad Institute for the Processing of Terra Personal Data, and which shall in any event include such Processing as is necessary to deliver the Services. Any additional or alternate instructions must be agreed to according to the process in the Agreement.

3.3. In any instance where the User is a Controller of Terra Personal Data, the User warrants to The Broad Institute that the instructions in the Agreement, this DPA and by any other means that it provides to The Broad Institute in relation to the Processing of Terra Personal Data comply with the Data Protection Laws.

3.4. In any instance where the User is a Processor of Terra Personal Data, the User warrants to The Broad Institute that the User’s instructions, including the appointment of The Broad Institute as a Subprocessor of Terra Personal Data, have been authorized by the relevant Controller(s).

3.5. The Broad Institute shall notify the User if, in The Broad Institute’s opinion, an instruction for the Processing of Terra Personal Data given by the User infringes the Data Protection Laws, provided that The Broad Institute shall have no liability for any losses arising from or in connection with the User’s instruction following the receipt of such notification.

4. Processor Confidentiality

4.1. The Broad Institute shall ensure that its personnel engaged in the Processing of Terra Personal Data shall Process such Terra Personal Data only on instructions from the User or as described in the Agreement, this DPA and the Terra Privacy Policy, and shall be obligated to maintain the confidentiality and security of such Terra Personal Data even after their engagement ends.

5. Data Subject Rights; Assistance

5.1. The Broad Institute shall make available to the User, in a manner consistent with the functionality of the Services and The Broad Institute’s role as a Processor of Terra Personal Data, the ability to fulfill Data Subject requests to exercise their rights under the Data Protection Laws.

5.2. If The Broad Institute receives a request from the User’s Data Subject to exercise one or more of their rights under the Data Protection Laws in connection with the Services for which The Broad Institute is a Processor or a Subprocessor of Terra Personal Data, The Broad Institute shall redirect the Data Subject to make its request directly to the User.

5.3. The User shall be responsible for responding to any Data Subject request notified to it by The Broad Institute, including, where necessary, by using the functionality of the Services, and The Broad Institute shall, at the User’s cost, comply with reasonable requests by the User to assist with the User’s response to such a Data Subject request.

5.4. The Broad Institute shall, at the User’s request and cost, taking into account the nature of Processing and the information available to The Broad Institute, assist the User with its obligations under Articles 32 to 36 of the GDPR and the UK GDPR, as applicable, in relation to Terra Personal Data.

6. Records of Processing Activities

6.1. To the extent that the Data Protection Laws require The Broad Institute to collect and maintain records of certain information relating to the User, the User will, where requested, supply such information to The Broad Institute and keep it accurate and up-to-date, and The Broad Institute may make any such information available to the Data Protection Regulator if required or permitted by the Data Protection Laws.

7. Security Incident Notification

7.1. If The Broad Institute becomes aware of a Security Incident, The Broad Institute shall promptly and without undue delay: (a) notify the User of the Security Incident; (b) investigate the Security Incident and provide the User with detailed information about the Security Incident; and (c) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.

7.2. Notification(s) of Security Incidents shall be delivered to the User by any means The Broad Institute selects, including via email, and it is the User’s sole responsibility to ensure that the User maintains accurate contact information by which The Broad Institute can make such notification.

7.3. The User is solely responsible for complying with its obligations under incident notification laws applicable to the User and fulfilling any third-party notification obligations related to any Security Incident, and The Broad Institute shall make reasonable efforts to assist the User in fulfilling its obligations under the Data Protection Laws to notify the Data Protection Regulator and Data Subjects about such Security Incident. For the avoidance of doubt, The Broad Institute’s notification of or response to a Security Incident is not an acknowledgement by The Broad Institute of any fault or liability with respect to the Security Incident.

7.4. The Broad Institute’s assistance under this clause 7 shall be provided at the User’s cost unless and to the extent that the User demonstrates that such assistance is required because of a failure by The Broad Institute to comply with the obligations under this DPA.

7.5. The User must notify The Broad Institute promptly about any possible misuse of its accounts or authentication credentials or any Security Incident related to the Services.

8. Use of Subprocessors

8.1. The Broad Institute may hire Subprocessors to provide certain limited or ancillary services on its behalf and the User consents to this engagement and to The Broad Institute’s Affiliates as Subprocessors. Such authorizations shall constitute the User’s prior written consent to the subcontracting by The Broad Institute of the Processing of Terra Personal Data if such consent is required under the Data Protection Laws or the Standard Contractual Clauses.

8.2. The Broad Institute is responsible for its Subprocessors’ compliance with The Broad Institute’s obligations under this DPA. When engaging any Subprocessor, The Broad Institute will: (a) ensure via a written contract that the Subprocessor may access and use Terra Personal Data only to deliver the services that The Broad Institute has retained them to provide and is prohibited from using Terra Personal Data for any other purpose; (b) ensure that Subprocessors are bound by written agreements that require them to provide at least the level of data protection required of The Broad Institute under this DPA, including the limitations on disclosure of Terra Personal Data; and (c) oversee the Subprocessors to ensure that these contractual obligations are met.

8.3. The Broad Institute is permitted to engage new Subprocessors provided that: (a) it gives the User notice (by updating the Terra website and providing the User with a mechanism to obtain notice of that update) of any new Subprocessor at least 30 days months in advance of providing that Subprocessor with access to Terra Personal Data; and (b) the User does not legitimately object to such change in writing within that timeframe. Legitimate objections must contain reasonable and documented grounds relating to a proposed Subprocessor's non-compliance with the Data Protection Laws.

8.4. If the User does not approve of a new Subprocessor and The Broad Institute cannot reasonably avoid use of the Subprocessor by restricting such Subprocessor from Processing Terra Personal Data as set forth in the Agreement or this DPA, then the User may terminate the Services without penalty by providing, before the end of the relevant notice period, written notice of termination.

9. Security Measures

9.1. The Broad Institute, having regard to the nature of Terra Personal Data, shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk presented by the Processing of Terra Personal Data and to seek to protect Terra Personal Data against a Security Breach, including as a minimum the measures set out in Annex II of Schedule 1 to this DPA.

9.2. Should the User require The Broad Institute to implement appropriate technical and organizational measures that are specific to the User or differ from the measures set out in Annex II of Schedule 1 to this DPA, The Broad Institute reserves the right to do so at the User’s cost.

10. Data Transfers

10.1. Terra Personal Data that The Broad Institute Processes on the User’s behalf may not be the subject of a Restricted Transfer except in accordance with this DPA. Taking into account such safeguards, the User appoints The Broad Institute to Process Terra Personal Data to the United States or any other country in which The Broad Institute or its Subprocessors operate or otherwise Process Terra Personal Data to provide the Services, except as described elsewhere in this DPA.

10.2. In respect of any Restricted Transfer subject to the GDPR, the parties hereby enter into Module 2 of the EEA Standard Contractual Clauses set out in Schedule 1 to this DPA and which shall come into effect upon the commencement of a Restricted Transfer.

10.3. In respect of any Restricted Transfer subject to the UK GDPR, the EEA Standard Contractual Clauses set out in Schedule 1 to this DPA shall be read in accordance with, and deemed amended by, the provisions of Part 2 (Mandatory Clauses) of the UK IDTA, and the parties confirm that the information required for the purposes of Part 1 (Tables) of the UK IDTA is set out in this DPA.

11. Data Retention and Deletion

11.1. At all times during the term of the Agreement, the User shall have the ability to access, extract and delete Terra Personal Data from the Services.

11.2. The Broad Institute shall delete or return to the User all copies of Terra Personal Data after the business purposes for which Terra Personal Data was collected or transferred have been fulfilled or earlier upon the User’s request, unless authorized under the Agreement or this DPA, or required by applicable law, to retain such Terra Personal Data.

12. Auditing Compliance

12.1. The Broad Institute shall conduct audits of the security of the computers, computing environment, and physical data centers that it uses in Processing Terra Personal Data, as follows: (a) where a standard or framework provides for audits, an audit of such control standard or framework shall be initiated at least annually; (b) each audit shall be performed according to the standards and rules of the regulatory or accreditation body for each applicable control standard or framework; and (c) each audit shall be performed by qualified, independent, third party security auditors at The Broad Institute’s selection and expense.

12.2. Each audit shall result in the generation of an audit report (“Broad Institute Audit Report”), which The Broad Institute shall make available to the User. The Broad Institute Audit Report shall be The Broad Institute’s confidential information and shall clearly disclose any material findings by the auditor. The Broad Institute shall promptly remediate issues raised in any Broad Institute Audit Report to the satisfaction of the auditor. If the User requests, The Broad Institute shall provide the User with each Broad Institute Audit Report, which shall be subject to non-disclosure and distribution limitations of The Broad Institute and the auditor.

12.3. To the extent that the User’s audit requirements under the Data Protection Laws cannot reasonably be satisfied through audit reports, documentation or compliance information that The Broad Institute makes generally available to its Users, The Broad Institute shall promptly respond to the User’s additional audit instructions. Before the commencement of an audit, the User and The Broad Institute shall mutually agree upon the scope, timing, duration, control and evidence requirements, and fees for the audit, provided that this requirement to agree shall not permit The Broad Institute to unreasonably delay performance of the audit. To the extent needed to perform the audit, The Broad Institute shall make the Processing systems, facilities and supporting documentation relevant to the Processing of Terra Personal Data by The Broad Institute, its Affiliates and its Subprocessors available. Such an audit shall be conducted by an independent, accredited third-party audit firm, during regular business hours, with reasonable advance notice to The Broad Institute, and subject to reasonable confidentiality procedures. Neither the User nor the auditor shall have access to any data from The Broad Institute’s other Users or to The Broad Institute’s systems or facilities that not involved in providing the Services. The User is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time The Broad Institute expends for any such audit, in addition to the rates for services performed by The Broad Institute. If the audit report generated as a result of the User’s audit includes any finding of material non-compliance, User shall share such audit report with The Broad Institute and The Broad Institute shall promptly cure any material non-compliance.

13. Term and Termination

13.1. Without prejudice to any rights that have accrued under this DPA or any of its rights or remedies, either party may terminate this DPA with immediate effect by giving written notice to the other party if the other party commits a material breach of this DPA. Termination of this DPA shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

13.2. This DPA shall otherwise continue in full force and effect until expiry or termination of the Agreement. Any provision of this DPA that expressly or by implication is intended to come into or continue in force on or after termination of this DPA shall remain in full force and effect.

14. Governing Law; Dispute Resolution

14.1. These terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the subject matter or formation of this DPA shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, U.S.A..

IN WITNESS THEREOF, this DPA has been executed by each of the parties hereto by its duly authorized representative as of the date set forth below.

Schedule 1: EEA Standard Contractual Clauses - Controller to Processor
Section 1

Clause 1 Purpose and scope

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

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

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

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

Clause 2 Effect and invariability of the Clauses

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

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

Clause 3 Third-party beneficiaries

(c) 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).

(d) 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 the Agreement or related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6 Description of the transfer(s)

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

Clause 7 Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

Section 2 - 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 organizational 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 organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized 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 organizational 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 authorized 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 defense 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 authorization 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 thirty days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data 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 fulfill 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 authorized 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 organizational 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 authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject. The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.

(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, organization 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) 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.

(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 3 - Local laws and obligations in case of access ny 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 authorizing 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 authorizing 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 organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

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

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

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

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 Obligations of the data importer in case of access by public authorities

15.1 Notification

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

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

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

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

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

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

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

15.2 Review of legality and data minimization

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

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

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

Section 4 - Final Provisions

Clause 16 Non-compliance with the Clauses and termination

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

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

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

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

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

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

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

Clause 17 Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of [the EU Member State in which the data exporter is established].

Clause 18 Choice of forum and jurisdiction

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

(b) The Parties agree that those shall be the courts of the EU Member State in which the data exporter is established.

(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.

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: [User]

Address: [⚫]

Contact person’s name, position and contact details: [⚫]

Activities relevant to the data transferred under these Clauses: Refer to B (Description of Transfer) below

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: The Broad Institute

Address: [⚫]415 Main St, Cambridge, MA 02142, U.S.A.

Contact person’s name, position and contact details: [⚫]

Activities relevant to the data transferred under these Clauses: Refer to B (Description of Transfer) below

Signature and date: [⚫]

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

[Enter categories of data subject]

Categories of personal data transferred

Personal data processed pursuant to the Agreement, including, for example, name, username, title, e-mail address, postal address, telephone number

Special categories of data (if appropriate)

N/A

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

Continuous

Nature of the processing

Processing in connection with the services provided pursuant to the Agreement.

Purpose(s) of the data transfer and further processing

Provision of the services pursuant to the Agreement

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

For the duration set forth in the Agreement.

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

[Enter details of subprocessors]

C. COMPETENT SUPERVISORY AUTHORITY

[Enter data exporter’s competent supervisory authority]

ANNEX II

Technical and Organizational Measures

[⚫]

ANNEX III

LIST OF SUB-PROCESSORS

This Annex must be completed in case of the specific authorization of sub-processors (Clause 9(a)).

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

1. Name: [⚫]

   Address: [⚫]

   Contact person’s name, position and contact details: [⚫]

   Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): [⚫]

2. 2. …