Aetrex Data Protection Addendum

This Data Protection Addendum (“DPA”) supplements, amends, and forms part of any foot scanner rental agreements, foot scanner purchase agreements, applicable scanner software end user license agreements, and any other agreements referencing this DPA (collectively, the “AGREEMENT”) between: (i) Aetrex, Inc. (“Aetrex”); and (ii) Customer. This DPA addresses the rights and obligations of the parties with respect to data privacy under Applicable Laws (defined below). This DPA is an agreement between you and the entity you represent (“Customer”, “you”, or “your”) and Aetrex.

The terms used in this DPA shall have the meanings set forth in this DPA. Except as modified below, the terms of the AGREEMENT shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as a DPA to the AGREEMENT. Except where the context requires otherwise, references in this DPA to the AGREEMENT are to the AGREEMENT as amended by, and including, this DPA.

1. Definitions

1.1 In this DPA, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1 “Applicable Laws” means all applicable laws, statutes, regulations, rules in any jurisdiction issued by a government office or agency that have binding legal force and are generally applicable to the Processing of Personal Data, privacy, data protection, data security and breach notification under this DPA, including without limitation, to the extent applicable, GDPR, UK GDPR, Data Protection Act 2018, California Consumer Privacy Act of 2018, the state and federal laws of the United States, Hong Kong’s Personal Data (Privacy) Ordinance, and other jurisdictions around the world as amended from time to time;

1.1.2 “Customer Personal Data” means any Personal Data processed by Aetrex on behalf of Customer pursuant to or in connection with the AGREEMENT (as used in this DPA, includes Data Subjects’ Personal Data);

1.1.3 “GDPR” means the European Union’s General Data Protection Regulation 2016/679 and its implementing regulations, and the United Kingdom’s General Data Protection Regulation;

1.1.4 “Services” means the foot-scan services and other activities to be supplied to or carried out by Aetrex for Customer pursuant to the AGREEMENT or the nature and intent of the foot scanner;

1.1.5 “Standard Contractual Clauses” means the Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj and attached hereto as Attachment 2 and forming part of this DPA (“EU Standard Contractual Clauses”); the United Kingdom’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, as currently set out at https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/international-transfers/international-data-transfer-agreement-and-guidance/ and attached hereto as Attachment 3 and forming part of this DPA (“UK Standard Contractual Clauses Addendum”), and the Hong Kong Privacy Commissioner’s Recommended Model Contractual Clauses, as currently set out at https://www.pcpd.org.hk//english/resources_centre/publications/files/guidance_model_contractual_clauses.pdf [and attached hereto as Attachment 4 and forming part of this DPA] (the “Hong Kong Recommended Model Contractual Clauses”).

1.1.6 “Subprocessor” means any person (including any third party, but excluding an employee of Aetrex or any of its sub-contractors) appointed by or on behalf of Aetrex to Process Personal Data on behalf of Customer in connection with the AGREEMENT; and

1.1.7 “Aetrex” includes Aetrex, Inc. and its successors and assigns, as well as any affiliate of Aetrex, Inc. and its successors and assigns, where “affiliate” means a person or entity that directly, or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with another person or entity, and “control” means the power to direct the management and policies of the entity, whether through the ownership of securities, by contract or otherwise.

1.2 The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR.

2. Controlling and Processing of Customer Personal Data

2.1 This DPA applies when the GDPR, or other Applicable Laws, apply to Customer Personal Data processed by Aetrex. In this context, Customer shall be the Controller and Aetrex shall be the Processor, with respect to the Customer Personal Data. The parties acknowledge and agree that each is acting independently in their roles and responsibilities, with respect to their use, handling, access and protection of Customer Personal Data, and the parties are not joint controllers or processors as defined under Applicable Laws. To the extent a party’s role may be deemed to cross over, or to the extent one may be deemed to be acting, along with the other party, as a joint Processor or Controller, as the case may be, with respect to Customer Personal Data, there shall be no joint and several liability, and each party shall remain liable for its own acts and omissions one to the other and to any and all third parties including but not limited to Data Subjects.

2.1.1 Customer shall promptly notify Aetrex if it receives a request from a Data Subject under any Applicable Laws in respect of Customer Personal Data; or if it becomes aware of any data breaches.

2.2 Aetrex shall:

2.2.1 comply with all Applicable Laws in the Processing of Customer Personal Data;

2.2.2 not Process Customer Personal Data other than what has been specified in the AGREEMENT unless Processing is required by Applicable Laws to which Aetrex is subject, in which case Aetrex shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the relevant Processing of that Personal Data; and

2.2.3 if not otherwise specified in the AGREEMENT, the parties understand and agree that upon receipt of Customer Personal Data from Customer’s EU Data Subjects who have had their feet scanned by CUSTOMER on Aetrex’s foot scanners, Aetrex is permitted to and will Process such Personal Data to provide a foot scan analysis and other associated information to Customer’s Data Subjects on an ongoing basis in order to fulfill its contractual obligations and other legitimate business interests as permitted under Applicable Laws.

2.3 Customer hereby instructs Aetrex to Process Customer Personal Data and transfer Customer Personal Data to any country or territory as reasonably necessary for the provision of the Services and consistent with the AGREEMENT. Notwithstanding the preceding sentence, Aetrex shall not transfer Customer Personal Data unless it takes reasonably required measures by Customer to ensure such transfer is in compliance with any Applicable Laws. The EU Standard Contractual Clauses will apply to Customer Personal Data that is transferred outside the European Economic Area (“EEA”) and Switzerland, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The UK Standard Contractual Clauses Addendum will apply to Customer Personal Data that is transferred outside the United Kingdom, either directly or via onward transfer, to any country not recognized by the United Kingdom as providing an adequate level of protection for personal data (as described in the GDPR). The Hong Kong Recommended Model Contractual Clauses will apply to Customer Personal Data that is transferred outside Hong Kong, either directly or via onward transfer, to any country. The Standard Contractual Clauses will not apply to Customer Personal Data that is not transferred, either directly or via onward transfer, outside the EEA, Switzerland, the United Kingdom, and/or Hong Kong, as applicable. Where and to the extent there is any conflict between this DPA, the AGREEMENT, and the Standard Contractual Clauses, the applicable Standard Contractual Clauses will prevail in all cases.

2.4 Customer shall be responsible for compliance with the requirements of all Applicable Laws, including but not limited to article 6(1)(a) of the GDPR, to obtain consent that may be necessary from Data Subjects to the processing of their Personal Data for the purposes specified in the AGREEMENT and this DPA, including but not limited to the transfer of their Personal Data and Customer’s use, access, protection of Data Subjects’ Personal Data for marketing purposes without Data Subjects’ consent. Additionally, if Customer is acting as a distributor or wholesaler of Aetrex’s foot scanners (i.e., re-sells, sells, rents, leases, or otherwise gives Aetrex’s foot scanners and technology for use by Customer’s customers) Customer shall be solely responsible and liable for ascertaining and executing the required data processing agreements with its customers under Applicable Laws.

2.5 Customer agrees to defend, indemnify and hold harmless Aetrex and its respective officers, directors, shareholders, managers, members, affiliates, subsidiaries, successors, insurers, assigns, employees and agents (each, a “Aetrex Indemnified Party”) against any claim, loss, damage, liability, penalty, fine or expense (including, without limitation, reasonable attorney’s fees and litigation costs and expenses) (a “Claim”) incurred by an Aetrex Indemnified Party by reason of or arising out of: (i). Customer’s or Customer’s customers’ failure to obtain consent from any Data Subject for processing of Data Subject’s Personal Data; (ii). any act or omission of Customer’s, or any of Customer’s customers to whom Customer rents, leases, re-sells, sells, or otherwise gives Aetrex’s foot scanner equipment or technology to for processing of Personal Data by Aetrex; (iii). any act or omission or violation of Applicable laws by Customer or by Customer’s customers; (iv). Any unauthorized marketing activities using Data Subjects Personal Data without proper consent by Customer or Customer’s customers; (v). failure to notify Aetrex of any requests it receives from a Data Subject under any Applicable Laws in respect of any Data Subjects’ Personal Data; (vi). any other unlawful use of Data Subjects’ Personal Data under Applicable Laws; and (vii). and any other breach of this DPA by Customer or Customer’s customers.

2.6 Attachment 1 to this DPA sets out certain information regarding Aetrex’s Processing of the Customer Personal Data. Nothing in Attachment 1 confers any right or imposes any obligation on any party to this DPA.

3. Aetrex Personnel

 

Aetrex shall take reasonable steps to ensure that any employee, agent, or contractor of Aetrex or a Subprocessor who may have access to the Customer Personal Data is subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Aetrex shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in article 32(1) of the GDPR.

5. Data Subject Rights

5.1 Taking into account the nature of the Processing, Aetrex shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under Applicable Laws.

5.2 Aetrex shall:

5.2.1 promptly notify Customer if Aetrex or a Subprocessor receives a request from a Data Subject under any Applicable Laws in respect of Customer Personal Data; and

5.2.2 ensure that Aetrex and, if applicable, the Subprocessor do not respond to that request except on the documented instructions of Customer, if such instructions are required, or as required by Applicable Laws to which Aetrex and/or the Subprocessor are subject, in which case Aetrex shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before Aetrex and/or the Subprocessor responds to the request.

6. Personal Data Breach

6.1 Aetrex shall notify Customer without undue delay upon Aetrex becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under Applicable Laws.

6.2 Aetrex shall cooperate with Customer and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.

7. Data Protection Impact Assessment and Prior Consultation

Aetrex shall provide reasonable assistance to Customer with any data protection impact assessments and prior consultations with Supervising Authorities or other competent data privacy authorities which may be required of Customer under any Applicable Laws, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, Aetrex and any of its Subprocessors.

8. Deletion or return of Customer Personal Data

8.1 Upon termination of the AGREEMENT or at the written request of Customer, Aetrex shall without undue delay delete or return to Customer all copies of Customer Personal Data.

8.2 Aetrex and any Subprocessor may retain Customer Personal Data to the extent required by Applicable Laws provided that Aetrex shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.

9. Audit rights

Aetrex shall make available to Customer on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of the Customer Personal Data by Aetrex and any Subprocessor(s). The cost of any audits conducted by Customer and/or its mandated auditor(s) shall be borne solely by Customer.

10. Payment

The parties shall be responsible for their own expenses, including but not limited to the costs of labor and/or materials, incurred in connection with this DPA.

11. Subprocessing

11.1 Customer authorizes Aetrex to appoint (and permit each Subprocessor appointed in accordance with this section 11 to appoint) Subprocessors in accordance with this section 11 and any restrictions in the AGREEMENT.

11.2 Aetrex may continue to use those Subprocessors already engaged by Aetrex as of the date of this DPA, subject to Aetrex as soon as practicable meeting the obligations set out in section 11.4. The list of Aetrex’s current Subprocessors is available upon request

11.3 Aetrex shall give Customer prior written notice of the appointment of any new Subprocessor, including details of the Processing to be undertaken by the Subprocessor. If, within fourteen (14) days of receipt of that notice, Customer notifies Aetrex in writing of any objections (on reasonable grounds to the proposed appointment), Aetrex shall not appoint that proposed Subprocessor 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.

11.4 With respect to each Subprocessor, Aetrex shall:

11.4.1 before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with section 11.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by the AGREEMENT;

11.4.2 ensure that the arrangement between, on the one hand Aetrex (or an intermediate Subprocessor) and, on the other hand, the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this DPA;

11.4.3 if that arrangement involves a transfer of Customer Personal Data, ensure that the Subprocessor take all such measures as are reasonably required to ensure such transfer is in compliance with Applicable Laws; and

11.4.4 provide to Customer for review such copies of Aetrex’s agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this DPA) as Customer may request from time to time.

11.5 Aetrex shall ensure that each Subprocessor performs the obligations under this DPA as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of Aetrex.

12. General Terms

12.1 Governing law and jurisdiction: The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the 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. If no jurisdiction or dispute resolution is specified, any disputes arising under this DPA or Agreement shall be exclusively resolved by binding arbitration, before a single arbitrator, pursuant to the international arbitration rules and procedures of the ICDR American Arbitration Association, which shall take place in New York, New York.

12.2 Compliance with Applicable Laws: Each party shall comply with the APPLICABLE LAWS in performing their respective obligations under this DPA, and the handling, use, access, privacy, and protections requirements thereunder of Personal Data. This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the AGREEMENT.

12.3 Order of precedence: Nothing in this DPA reduces Aetrex’s obligations under the AGREEMENT in relation to the protection of Personal Data or permits Aetrex to Process Personal Data in a manner which is prohibited by the AGREEMENT. In the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the AGREEMENT and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.

12.4 Severance: Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (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.

Attachment 1

DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

This Attachment 1 includes certain details of the Processing of Customer Personal Data.

1. Subject matter and duration of the Processing of Customer Personal Data:

The subject matter and duration of the Processing of the Customer Personal Data are set out in the AGREEMENT and this DPA.

2. The nature and purpose of the Processing of Customer Personal Data:

Customer will forward Personal Data it receives from its Data Subject retail customers who have undergone a foot scan for the purpose of processing and delivering a foot analysis and related information to assist the Data Subjects in proper fitting footwear and orthotics.

3. The types of Customer Personal Data to be Processed:

Information on Data Subjects relevant for the processing of the foot scan procedure, which may include: Name, email address, age, gender, phone number, foot size, foot pressure, arch type and other foot measurement/fitting information.

4.The categories of Data Subjects to whom the Customer Personal Data relates:

Aetrex as Processor processes Personal Data about the following categories of data subjects: Retail footwear/orthotic customers of Customer.

 

Attachment 2

EU Standard Contractual Clauses (Module 2: Controller-to-Processor)

SECTION I

Clause 1

Purpose and scope

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

(b) The Parties:

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

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

(iii) have agreed to these standard contractual clauses (hereinafter: “Clauses”).

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

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

Clause 2

Effect and invariability of the Clauses

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

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

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

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

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

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

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of transfers(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 – optional

Omitted.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses..

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) GENERAL WRITTEN AUTHORISATION. The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject. 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: 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;refer the dispute to the competent courts within the meaning of Clause 18. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679 The data importer shall abide by a decision that is binding under the applicable EU or Member State law. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

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

Clause 13

Supervision

(a)[Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

 

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

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

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

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

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

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

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

Clause 15

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

15.1 Notification

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

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

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

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

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

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

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

15.2 Review of legality and data minimisation

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

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

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

(d) Personal data 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 Ireland.

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 Ireland.

(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 1 to the Standard Contractual Clauses

A. LIST OF PARTIES (transfer from controller to processor)

Data exporter(s):

Name: The entity identified as “Customer” in the DPA

Address: As set out in the AGREEMENT.

Contact person’s name, position and contact details: As set out in the AGREEMENT.

Activities relevant to the data transferred under these Clauses: As set out in the DPA.

Signature and date: As set out in the AGREEMENT.

Role: controller

Data importer(s):

Name: Aetrex, Inc.

Address: As set out in the AGREEMENT.

Contact person’s name, position and contact details: As set out in the AGREEMENT.

Activities relevant to the data transferred under these Clauses: As set out in the DPA.

Signature and date: As set out in the AGREEMENT.

Role: processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred: The personal data transferred concern the data subjects identified in Attachment 1 of the DPA.

Categories of personal data transferred: The personal data transferred concern the categories of data identified in Attachment 1 of the DPA.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. Customer is not permitted to transfer Sensitive data to Aetrex.

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

Nature of the processing: The processing operations are defined in Attachment 1 of the DPA.

Purposes(s) of the data transfer and further processing: Customer will forward Personal Data it receives from its Data Subject retail customers who have undergone a foot scan for the purpose of processing and delivering a foot analysis and related information to assist the Data Subjects in proper fitting footwear and orthotics.

The purpose of the data transfer is: Customer will forward Personal Data it receives from its Data Subject retail customers who have undergone a foot scan for the purpose of processing and delivering a foot analysis and related information to assist the Data Subjects in proper fitting footwear and orthotics.

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

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

C. COMPETENT SUPERVISORY AUTHORITY Identify the competent supervisory authority/ies in accordance with Clause 13.

As set out in this DPA.

Annex 2 to the Standard Contractual Clauses

Technical and Organizational Measures including Technical and Organizational Measures to endure the Security of the Data

Data importer shall maintain appropriate technical and organisational security measures for protection of the security, confidentiality and integrity of personal data, as described in the DPA. Data importer will not materially decrease the overall security of the Services during the term of the Agreement.

1. Organizational security measures

1.1. Security management

a. Security policy and procedures: the DATA IMPORTER must document a security policy regarding the processing of personal data that performs on behalf of the DATA EXPORTER.

As part of its data protection compliance process, DATA IMPORTER has implemented technical, physical, and administrative security measures to protect data. Below outlines its practices:

b. Functions and responsibilities:

i. The functions and responsibilities related to the processing of personal data will be clearly defined and assigned in accordance with the security policy.

ii. During internal reorganizations, layoffs and job change, the revocation of rights and responsibilities is clearly defined with the respective transfer procedures.

c. Access control policy: specific access control rights are assigned to each function involved in the processing of personal data, following the “need to know” policy.

d. Resource management: the controller has a record of the IT resources used for the processing of personal data (hardware, software and network). A specific person is assigned the task of maintaining and updating the record.

e. Change management - The data controller ensures that all changes to the IT system are logged and monitored by a specific person (for example, an IT or security technician). Regular monitoring of this process is carried out

1.2 Incident response and business continuity

a. Incident management / personal data security breach:

i. An incident response plan is defined with detailed procedures to ensure an efficient and orderly response to incidents related to personal data.

ii. The DATA IMPORTER shall promptly inform the DATA EXPORTER of any security incident that has resulted in the loss, misuse, or unauthorized acquisition of personal data.

b. Business continuity: the data controller establishes the main procedures and controls that must be followed to ensure the required level of continuity and availability of the computer system that processes personal data (in the event of an incident / personal data security breach).

1.3. Human Resources

a. Confidentiality of personnel: the controller ensures that all employees understand their responsibilities and obligations related to the processing of personal data. Roles and responsibilities are clearly communicated during the pre-employment and / or internship process.

b. Training: the data controller ensures that all employees are adequately informed about the security controls of the IT system that relates to their daily work. Employees involved in the processing of personal data are also duly informed about the relevant data protection requirements and legal obligations through regular awareness campaigns.

2. Technical security measures

2.1. Access control and authentication

a. An access control system applicable to all users accessing the IT system is implemented. The system allows to create, approve, review and delete user accounts.

b. The use of common user accounts is avoided. In cases where this is necessary, it is ensured that all common account users have the same roles and responsibilities.

c. When granting access or assigning user functions, the "need-to-know principle" must be observed to limit the number of users who have access to personal data to only those who request it to achieve the processing purposes of the person in charge.

d. When the authentication mechanisms are based on passwords, the DATA IMPORTER requires that the password be at least eight characters long and adjusts to very robust password control parameters such as length, character complexity, and non-repeatability.

e. Authentication credentials (such as user ID and password) will not be transmitted unprotected over the network.

2.2 Registration and monitoring

The log files are activated for each system / application used for the processing of personal data They include all types of data access (view, modification, erasure).

 

2.3 Data at rest security

A. Server / database security.

i. Database and application servers are configured to run using a separate account, with minimal operating system privileges to function properly.

ii. The database and application servers only process the personal data that are really needed to achieve their processing purposes.

B. Workstation security

i. Users cannot disable or bypass security settings.

ii. Antivirus applications and detection signatures are configured on a regular basis.

iii. Users do not have privileges to install or disable unauthorized software applications.

iv. The system has session timeouts when the user has not been active for a certain period of time.

v. Critical security updates released by the developer of the operating system are installed regularly.

2.4 Network / communication security

a. When access is via the Internet, the communication is encrypted through cryptographic protocols.

b. Traffic to and from the IT system is tracked and controlled through firewalls and intrusion detection systems.

2.5 Backups

a. Data recovery and restoration procedures are defined, documented, and clearly linked to roles and responsibilities.

b. Backups receive an appropriate level of physical and environmental protection consistent with the standards applied to the source data.

c. Backup execution is monitored to ensure it is fulfilled.

2.6 Mobile/Portable Devices

a. Portable and mobile device data procedures are defined and documented establishing clear rules for their proper use.

b. Mobile devices that have permission to access the information system are pre-registered and pre-authorized.

2.7 Application lifecycle security

During the life cycle of personal data, best practices and recognized secure development practices or standards are followed.

2.8. Erasing / deleting data:

a. Software-based overwrite will be performed on the media before it is removed. In cases where this is not possible (CDs, DVDs, etc.), physical destruction will be carried out.

b. Shredding of paper and portable media used to store personal data is carried out.

 

Annex 3 to the Standard Contractual Clauses

List of Aetrex’s Current Subprocessors

Customer has authorized the use of the following subprocessors:

Entity Name, Address, and Contact Person’s name, position and contact details : Amazon Web Services, Inc.

Description of the Processing : 410 Terry Ave N, Seattle, WA USA 98109

Country location(s) of Processing : Amazon Elastic Compute Cloud (AW2 EC2) secure web services are used to compute, and AWS RDS and AWS S3 for storage of data. All data is encrypted in transit. All AWS user accounts follow the security policy guidelines provided by AWS including the use of multi-factor authentication for every user.

Attachment 3

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

VERSION B1.0, in force 21 March 2022

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: As described in the Data Protection Addendum.

Annex 1B: Description of Transfer: As described in the Data Protection Addendum.

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: As described in the Data Protection Addendum.

Annex III: List of Sub processors (Modules 2 and 3 only): As described in the Data Protection Addendum.

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3.Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

4.This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved 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.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved 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 Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11. Where this Addendum incorporates Addendum 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 Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12.This Addendum incorporates the Addendum 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 Addendum EU SCCs; and

c. this Addendum (including the Addendum 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 alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

14. No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

15. The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made:

a. References to the “Clauses” means this Addendum, incorporating the Addendum 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 Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

d. Clause 8.7(i) of Module 1 is replaced with: “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

e. Clause 8.8(i) of Modules 2 and 3 is replaced with:“the onward transfer is to a country benefitting 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 Module one, is replaced with “Clause 11(c)(i)”;

j. Clause 13(a) and Part C of Annex I are 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.”;

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.”; and

o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, 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 any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, 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.

Alternative Part 2 Mandatory Clauses:

Attachment 4

Hong Kong Recommended Model Contractual Clauses (for data transfer from data user to data processor)

1. DEFINITIONS

1.1 For the purposes of these clauses, including the Data Transfer Schedule (collectively, the “Clauses”):

“PDPO” means the Personal Data (Privacy) Ordinance (Cap. 486), as may be amended from time to time;

“Permitted Jurisdictions” means the place(s) listed in the Data Transfer Schedule or any other place where the Personal Data Transferred may from time to time be processed or held in accordance with these Clauses;

“Personal Data Transferred” means personal data of the types or categories listed in the Data Transfer Schedule;

“Purposes of Transfer” means the purposes for processing the Personal Data Transferred listed in the Data Transfer Schedule or the directly related purposes;

“Retention Period” means any period of time identified as such in the Data Transfer Schedule; and

“Sub-processor” has the meaning given in Clause 3.8;

“Transferee” means Aetrex, Inc.;

“Transferor” means the entity identified as “Customer” in the DPA.

1.2 The terms “personal data” and “processing” shall have the meanings given to those terms in the PDPO (and “process” shall have a corresponding meaning).

2. INTERPRETATION

The Clauses shall be read and interpreted in the light of the provisions of the PDPO. The Clauses shall not be interpreted in a way that may conflict with the relevant requirements under the PDPO.

3. OBLIGATIONS OF THE TRANSFEREE

The Transferee warrants and undertakes to the Transferor that it will:

3.1 only process the Personal Data Transferred for the Purposes of Transfer;

3.2 ensure that the Personal Data Transferred be adequate but not excessive in relation to the Purposes of Transfer;

3.3 process, hold and transmit the Personal Data Transferred using the security measures set out in the Data Transfer Schedule;

3.4 not retain the Personal Data Transferred for longer than is necessary for the processing instructed by the Transferor and, in any event, not longer than any applicable Retention Period;

3.5 take all practicable steps to erase the Personal Data Transferred: (i) once it is no longer required to be retained in accordance with Clause 3.4; or (ii) as instructed by the Transferor;

3.6 take all practicable steps to ensure that the Personal Data Transferred be accurate, having regard to the Purposes of Transfer;

3.7 take all practicable steps to ensure that any inaccurate Personal Data Transferred (i) should not be processed unless it is rectified or (ii) should be erased;

3.8 not transfer the Personal Data Transferred to or permit access to the Personal Data Transferred by any person unless it is: (i) permitted under the Data Transfer Schedule; or (ii) made in accordance with section 11 of the DPA (each, a “Sub-processor”);

3.9 ensure that each Sub-processor should enter into a binding written contract with the Transferee which imposes the same or substantially similar data protection obligations as contained in these Clauses; and

3.10 not (i) process or hold the Personal Data Transferred; or (ii) permit any Sub-processor to process or hold the Personal Data Transferred, in either case, in a place outside Hong Kong other than the Permitted Jurisdictions, without the Transferor's prior written consent.

4. DATA TRANSFER SCHEDULE

4.1 DESCRIPTION OF TRANSFER

4.2 SUB-PROCESSING

4.3 SECURITY MEASURES

The security measures as set out in section 4 of the DPA.

Last Updated: February 19, 2025