United Kingdom International Data Transfer Addendum
This Addendum is incorporated into the Data Processing Agreement (“DPA”) between the Affirm Party and the service provider named in the Agreement (“Vendor”) (each individually, a “Party” and collectively, the “Parties”).
This Addendum implements the mandatory clauses in the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses [Version B1.0, March 21, 2022] issued by the United Kingdom’s (“UK”) Information Commissioner’s Office (“ICO”) and approved by the UK Parliament. This Addendum amends the European Union Standard Contractual Clauses (the “EU SCCs”) (incorporated into the DPA under Section 9.1.1 (a), (b), and (c)) to the extent the Services identified in the master service agreement and DPA involve Restricted Transfers of Affirm Data of UK Data Subjects.
Entering into this Addendum
1. The Parties agree to be bound by the terms and conditions set out in this Addendum.
2. Entering into this Addendum will have the same effect as signing the EU SCCs and any part of the EU SCCs.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the EU SCCs, those terms shall have the same meaning as in the EU SCCs. These are additional terms that have the following meanings to the extent this Addendum applies:
“Appropriate Safeguards” means the standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.
“Approved Addendum” means the addendum issued by the ICO and approved by Parliament in accordance with s119A of the Data Protection Act 2018, which incorporates the EU SCCs. This Addendum implements the mandatory clauses of the Approved Addendum.
“EU SCCs” means the version of the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 and referenced under the DPA Section 9.1.1 (a) (Module Four), (b) (Module Two), and (c)(Module One).
“UK SCCs” means this Addendum, which incorporates the EU SCCs and the mandatory clauses of the Approved Addendum.
“Restricted Transfer” means a transfer that is covered by Chapter V of the UK GDPR.
4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
5. If the provisions included in the EU SCCs attached to the DPA amend the EU SCCs in any way which is not permitted under the EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
9. Although Clause 5 of the EU SCCs sets out that the EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10. Where there is any inconsistency or conflict between the Approved Addendum and the EU SCCs (as applicable), the Approved Addendum overrides the EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates the EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those EU SCCs.
Incorporation of and changes to the EU SCCs
12. This Addendum incorporates the EU SCCs which are amended to the extent necessary so that:
a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
b. Sections 9 to 11 override Clause 5 (Hierarchy) of the EU SCCs; and
c. this Addendum (including the EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13. Unless the Parties have agreed to alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14. No amendments to the EU SCCs other than to meet the requirements of Section 12 may be made.
15. The following amendments to the EU SCCs (for the purpose of Section 12) are made:
a. References to the “Clauses” means this Addendum, incorporating the EU SCCs;
b. In Clause 2, delete the words: “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”;
c. Clause 6 (Description of the transfer(s)) is replaced with: “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Section 2 of the DPA where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
d. Clause 8.7(i) of the Controller-to-Controller EU SCCs (Module 1) is replaced with: “it is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
e. Clause 8.8(i) of the Controller-to-Processor EU SCCs (Module 2) is replaced with: “the onward transfer is to a country benefiting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
f. References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
g. References to Regulation (EU) 2018/1725 are removed;
h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of the Controller-to-Controller Standard Contractual Clauses (Module one), is replaced with “Clause 11(c)(i)”;
j. Clause 13(a) is not used;
k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
l. In Clause 16(e), subsection (i) is replaced with: “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
m. Clause 17 is replaced with: “These Clauses are governed by the laws of England and Wales.”; and
n. Clause 18 is replaced with: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
Amendments to this Addendum
16. The Parties may agree to change Clauses 17 and/or 18 of the EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland. This amendment to Clauses 17 and 18 shall be made through a written amendment to the Agreement and signed by the Parties.
17. If the Parties wish to change the format of the information included in the Agreement and DPA regarding the identity of the Parties, description of the transfer of Affirm Data, and list of technical and organizational measures, including those to ensure the security of the data, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved Addendum which:
a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
b. reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
19. If the ICO issues a revised Approved Addendum under Section 18, if either Party, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
a. its direct costs of performing its obligations under the Addendum; and/or
b. its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.