Data Processing Addendum

Last Revised: November 14, 2023

This Data Processing Addendum (“DPA”) forms part of the Master Subscription Agreement or other written or electronic agreement between iComply Investor Services Inc. (“iComply”) and Customer for the purchase of online services (including associated iComply offline or mobile components) from iComply (identified either as “Services” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.

By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent iComply processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

In the course of providing the Services to Customer pursuant to the Agreement, iComply may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

HOW TO EXECUTE THIS DPA

1. This DPA consists of two parts: the main body of the DPA, and Schedules 1, 2, 3.
2. Schedule 4 (including Appendices 1 to 3) is attached separately and applies to processors established in third countries which do not ensure an adequate level of data protection.
3. This DPA forms part of the Agreement between iComply and the customer.
4. The Standard Contractual Clauses in Schedule 4 have been pre-signed by iComply as the data importer. If these apply to the Customer:

Complete the information as the data exporter on Page 1.

Complete the information in the signature box and sign on Pages 7 and 9.

Send the completed and signed DPA to iComply by email, indicating the Customer’s Account Number (as set out on the applicable iComply Order Form or invoice), to [email protected].

Upon receipt of the validly completed DPA by iComply at this email address, this DPA will become legally binding.

HOW THIS DPA APPLIES

If the Customer entity is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the iComply entity that is party to the Agreement is party to this DPA.

If the Customer entity entering into the DPA has executed an Order Form with iComply or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form and applicable renewal Order Forms, and the iComply entity that is party to such Order Form is party to this DPA.

If the Customer entity entering into the DPA is neither a party to an Order Form nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executes this DPA.

If the Customer entity entering into the DPA is not a party to an Order Form nor a Master Subscription Agreement directly with iComply, but is instead a customer indirectly via an authorized reseller of iComply services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether any amendment to its agreement with that reseller may be required.

This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in Customer’s Agreement (including any existing data processing addendum to the Agreement).

DATA PROCESSING TERMS

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and iComply, but has not signed its own Order Form with iComply and is not a “Customer” as defined under the Agreement.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data. “Customer Data” means what is defined in the Agreement as “Customer Data” or “Your Data.”

“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“GDPR” means the 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).

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller.

“Security, Privacy and Architecture Documentation” means the Security, Privacy and Architecture Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via iComply’s Trust and Compliance agreements webpage (also accessible via www.iComplyIS.com/documentation/ under the “Documentation” link), or as otherwise made reasonably available by iComply.

“iComply” means the iComply entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, being iComply Investor Services Inc. a company being incorporated in British Columbia, Canada.

“iComply and Affiliates” means iComply and its Affiliates engaged in the Processing of Personal Data.

“Standard Contractual Clauses” means the agreement executed by and between Customer and iComply and attached hereto as Schedule 4 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means any Processor engaged by iComply or a member of iComply and Affiliates.

“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

2. PROCESSING OF PERSONAL DATA

2.1    Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, iComply is the Processor and that iComply or members of the iComply and Affiliates will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.

2.2    Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.

2.3    iComply’s Processing of Personal Data. iComply shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement; and Processing and Storage of Personal Data (e.g. email address) of the Customer and Data Subject for the purposes of providing iComply Services to the Customer; or, directly to the Data Subject if the Data Subject has entered into their own agreement with iComply.

2.4    Details of the Processing. The subject-matter of Processing of Personal Data by iComply is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 3 (Details of the Processing) to this DPA.

3. RIGHTS OF DATA SUBJECTS

3.1    Data Subject Request. iComply shall, to the extent legally permitted, promptly notify Customer if iComply receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, iComply shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, iComply shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent iComply is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from iComply’s provision of such assistance.

4. iComply PERSONNEL

4.1    Confidentiality. iComply shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. iComply shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

4.2    Reliability. iComply shall take commercially reasonable steps to ensure the reliability of any iComply personnel engaged in the Processing of Personal Data.

4.3    Limitation of Access. iComply shall ensure that iComply’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

4.4    Data Protection Officer. Members of the iComply and Affiliates have appointed a data protection officer. The appointed person may be reached at [email protected]. 

5. SUB-PROCESSORS

5.1    Appointment of Sub-processors. Customer acknowledges and agrees that (a) iComply’s Affiliates may be retained as Sub-processors; and (b) iComply and iComply’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. iComply or a iComply Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2    Liability. iComply shall not be liable for the acts and omissions of its Sub-processors, except as otherwise set forth in the Agreement.

6. SECURITY

6.1    Controls for the Protection of Customer Data. iComply shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security, Privacy and Architecture Documentation. iComply regularly monitors compliance with these measures. iComply will not materially decrease the overall security of the Services during a subscription term.

6.2    Third-Party Certifications and Audits. iComply has obtained the third-party certifications and audits set forth in the Security, Privacy and Architecture Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, iComply shall make available to Customer that is not a competitor of iComply (or Customer’s independent, third-party auditor that is not a competitor of iComply) an updated certification or third party audit, as applicable.

7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION

iComply maintains security incident management policies and procedures specified in the Security, Privacy and Architecture Documentation and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by iComply or its Sub-processors of which iComply becomes aware (a “Customer Data Incident”). iComply shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as iComply deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within iComply’s reasonable control. The obligations herein shall not apply to incidents that are caused by Data Subject, Customer or Customer’s Users.

8. RETURN AND DELETION OF CUSTOMER DATA

iComply shall, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security, Privacy and Architecture Documentation.

9. AUTHORIZED AFFILIATES

9.1    Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between iComply and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services and Content by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

9.2    Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with iComply under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

9.3    Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with iComply, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:

9.3.1   Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against iComply directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 9.3.2, below).

9.3.2   The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on iComply and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of different Authorized Affiliates in one single audit.

10. LIMITATION OF LIABILITY

Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and iComply, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

For the avoidance of doubt, iComply’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules and Appendices.

11. EUROPEAN SPECIFIC PROVISIONS

11.1 GDPR. With effect from 25 May 2018, iComply will Process Personal Data in accordance with the GDPR requirements directly applicable to iComply’s provision of its Services.

11.2 Data Protection Impact Assessment. With effect from 25 May 2018, upon Customer’s request, iComply shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to iComply. iComply shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of this DPA, to the extent required under the GDPR.

11.3 Transfer mechanisms for data transfers. Subject to the additional terms in Schedule 1, iComply makes available the transfer mechanisms listed below which shall apply, in the order of precedence as set out in Section 11.4, to any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations:

1.   iComply’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications apply to the Services listed in Schedule 2 to this DPA (the “EU-US and Swiss-US Privacy Shield Services”), subject to the additional terms in Section 2 of Schedule 1;

    

2. The Standard Contractual Clauses set forth in Schedule 4 to this DPA apply to the Services listed in Appendix 3 to the Standard Contractual Clauses (the “SCC Services”), subject to the additional terms in Section 2 of Schedule 1.

11.4 Order of precedence. In the event that Services are covered by more than one transfer mechanism, the transfer of Personal Data will be subject to a single transfer mechanism in accordance with the following order of precedence: (1) iComply’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications and, (2) the Standard Contractual Clauses.

12. PARTIES TO THIS DPA

The Section “HOW THIS DPA APPLIES” specifies which iComply entity is party to this DPA. In addition, iComply Investor Services Inc. is a party to the Standard Contractual Clauses in Schedule 4. Notwithstanding the signatures below of any other iComply entity, such other iComply entities are not a party to this DPA or the Standard Contractual Clauses. Where iComply is a different legal entity than iComply Investor Services Inc, iComply is carrying out the obligations of the data importer as set out in Schedule 4 “Standard Contractual Clauses” on behalf of iComplyis.com, inc.

13. LEGAL EFFECT

This DPA shall only become legally binding between Customer and iComply when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully completed.

List of Schedules

Schedule 1: Transfer Mechanisms for European Data Transfers

Schedule 2: EU-US and Swiss-US Privacy Shield Services

Schedule 3: Details of the Processing

Schedule 4: Standard Contractual Clauses (separate document) 

SCHEDULE 1 – TRANSFER MECHANISMS FOR EUROPEAN DATA TRANSFERS

1. ADDITIONAL TERMS FOR EU-U.S. AND SWISS-U.S. PRIVACY SHIELD SERVICES

iComply and its U.S. Affiliates self-certify to and comply with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, as administered by the US Department of Commerce, and iComply shall ensure that such entities maintain their self-certifications to and compliance with the EU -U.S. and Swiss-U.S. Privacy Shield Frameworks with respect to the Processing of Personal Data that is transferred from the European Economic Area and/or Switzerland to the United States.

2. ADDITIONAL TERMS FOR SCC SERVICES

2.1.   Customers covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 2 of this Schedule 1 apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates and, (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the SCC Services. For the purpose of the Standard Contractual Clauses and this Section 3, the aforementioned entities shall be deemed “data exporters”.

2.2.   Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to iComply for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by Users in their use of the SCC Services and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

2.3.   Appointment of new Sub-processors and List of current Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) iComply’s Affiliates may be retained as Sub-processors; and (b) iComply and iComply’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the SCC Services. iComply shall make available to Customer the current list of Sub-processors in accordance with Section 5.2 of this DPA

2.4.   Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that iComply may engage new Sub-processors as described in Sections 5.2 and 5.3 of the DPA.

2.5.   Copies of Sub-processor Agreements. The parties agree that the copies of the Sub-processor agreements that must be provided by iComply to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by iComply beforehand; and, that such copies will be provided by iComply, in a manner to be determined in its discretion, only upon request by Customer.

2.6.   Audits and Certifications. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications:

Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, iComply shall make available to Customer that is not a competitor of iComply (or Customer’s independent, third-party auditor that is not a competitor of iComply) information regarding the iComply and Affiliates ’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Security, Privacy and Architecture Documentation to the extent iComply makes them generally available to its customers. Customer may contact iComply in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse iComply for any time expended for any such on-site audit at the iComply and Affiliates’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and iComply shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by iComply. Customer shall promptly notify iComply with information regarding any non-compliance discovered during the course of an audit.

2.7.   Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by iComply to Customer only upon Customer’s request.

2.8.   Conflict. In the event of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Schedule 4, the Standard Contractual Clauses shall prevail.

SCHEDULE 2 – EU-U.S. AND SWISS-U.S. PRIVACY SHIELD SERVICES

• iComply Investor Services Inc.

SCHEDULE 3 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing

iComply will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.

Duration of Processing

Subject to Section 8 of the DPA, iComply will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Data Subjects

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Prospects, customers, business partners and vendors of Customer (who are natural persons)
• Employees or contact persons of Customer’s prospects, customers, business partners and vendors
• Employees, agents, advisors, freelancers of Customer (who are natural persons)
• Customer’s Users authorized or initiated by the Customer to use the Services

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• First and last name
• Title
• Position
• Contact information (company, email, phone, physical business address)
• ID data
• Localisation data
• Credit Bureau Data
• Financial Risk & Intelligence Data

SCHEDULE 4 STANDARD CONTRACTUAL CLAUSES