Protecting transfers of personal data outside the EU and EEA
Flashtalking is committed to upholding global data privacy and security standards, including those set forth by the European Commission (“Commission”) in the updated Standard Contractual Clauses (“SCCs”) issued in June 2021.
Flashtalking implemented the latest SCC framework in its contracting processes with new and renewing customers in September 2021, and these updated SCCs are incorporated by reference into existing signed agreements with customers with effect from November 1, 2022.
Flashtalking's technical, operational, and policy safeguards comply with the new SCC requirements
Like the previous SCCs, these clauses can be used to facilitate lawful transfers of data if certain conditions are met. Annex II of the SCCs provides a list of technical and organizational measures that provide adequate protection for personal data transfers to third countries. Our security measures align with these Annex II supplementary measures. Together with our focus on Privacy by Design and contractual commitments, Flashtalking’s policies and measures help global organizations meet the requirements of data privacy and protection regulations. For more details on any of these measures or policies, please contact us at email@example.com.
Appropriate legal protections
The Implementing Decision issued by the Commission on June 4, 2021 provides a helpful framework for the overall assessment of whether additional measures are needed to supplement the SCCs. When making the assessment, the parties are encouraged to consider factors such as:
- Reliable information on the application of the law in practice;
- The existence or absence of requests in the same sector; and
- The documented practical experience of the data exporter and/or data importer.
While not exempt from US laws permitting public authority surveillance, the nature of Flashtalking’s business means that we are not a likely target for US surveillance matters. In fact, the United States Department of Commerce has issued an official statement affirming that “most US companies do not deal in data that is of any interest to US intelligence agencies” and that the kinds of data transfers undertaken by most US companies do not present the type of privacy risk that concerned the European Court of Justice in the Schrems II case of 2020. The Department’s statement further clarifies that businesses whose operations involve “ordinary commercial products and services” with the transfer of personal data involving “ordinary commercial information like employee, customer or sales records” would have no basis to believe that US intelligence agencies would seek to collect such data.
In company history, Flashtalking has never been the subject of a public authority data request in the US or elsewhere. If Flashtalking were to receive such a request concerning the data of EU citizens, we would honor our obligations in compliance with Section III (“Local Laws and Obligations in Case of Access by Public Authorities”), Clause 14 (“Local laws and practices affecting compliance with the Clauses”) and Clause 15 (“Obligations of the data importer in case of access by public authorities”) as well as Section IV (“Final Provisions”), Clause 16 (“Non-compliance with the Clauses and termination”) of the SCCs.
Additional steps Flashtalking will take
In addition to the technical, operational and policy safeguards listed above, Flashtalking will also:
- Evaluate and where necessary complete Transfer Impact Assessments for all Subprocessors involved in processing activities; and
- Update all relevant Subprocessor agreements to comply with the new SCCs.
Applicability of the new clauses
The language of the clauses of the SCCs may not be varied. The SCCs form part of our signed contract with your organization to protect the data flows outside the EU of any personal data we may be processing under that contract. The applicable SCC’s modules reflect the relationship between the organization exporting the data (in this case, a company who is a client of Flashtalking) and the organization importing the data (Flashtalking). Flashtalking will be acting as a data processor for our client companies. The SCCs will apply to any agreement between Flashtalking and its customers that involves the transfer of personal data outside the EU, EEA, and replace the former versions of any SCCs in previously signed agreements.
Transfers outside the EU
Flashtalking commits to ensuring that any transfer of personal data outside the EU is carried out in compliance with the EU General Data Protection Regulation (“EU GDPR”). The EU SCCs will apply to customer data that is transferred outside the European Economic Area (EEA), either directly or via onward transfer, to any country not recognized by the European Commission as an adequate country. The SCCs will not apply to customer data that is not transferred, either directly or via onward transfer, outside the EEA. In relation to personal data that is protected by the EU GDPR, the EU SCCs will apply as follows:
- a) Module 2 will apply;
- b) In Clause 7, the optional docking clause will apply;
- c) In Clause 9, Option 2 (General Written Authorization) will apply, subject to the requirements set out in Annex III of this DPA, and the time period for prior notice of Subprocessor changes shall be thirty (30) days;
- d) In Clause 11, the optional language will not apply;
- e) In Clause 17, Option 1 will apply, and the EU SCCs will be governed by French law;
- f) In Clause 18(b), disputes shall be resolved before the courts of France;
- g) With regard to Annex 1(a) of the EU SCCs, the customer shall be deemed to be the Data Exporter and Flashtalking shall be deemed to be the Data Importer. Annex I of the EU SCCs shall be specified as follows and signed by the signature on the existing agreement between Flashtalking and the customer:
Annex I A. List of Parties
Data EXPORTER identity and contact details
|Contact person’s name, position and contact details:||As provided|
|Activities relevant to the data transferred under these Clauses:||As set out in the MSA Exhibit "Nature and Purpose of the Processing".|
Data IMPORTER identity and contact details
|Name:||Mediaocean LLC, Simplicity Marketing Limited, Flashtalking, Inc. and their related affiliates|
|Address:||120 Broadway, 8th Floor, New York, NY 10271|
|Contact person’s name, position and contact details:||firstname.lastname@example.org|
|Activities relevant to the data transferred under these Clauses:||As set out in the MSA Exhibit "Nature and Purpose of the Processing".|
ANNEX I B. Description of Transfer
|Categories of data subjects whose personal data is transferred||Visitors to websites on which the Customer’s ads or Flashtalking tags are placed.|
|Categories of personal data transferred||IP addresses and pseudonymous online identifiers including cookie ids and device ids.|
|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.||Not Applicable|
|The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).||Continuous|
|Nature of the processing||Flashtalking processes Personal Data submitted to, stored on, or sent in the course of delivering its ad serving services and related technical support in accordance with the Agreement and Addendum.|
|Purpose(s) of the data transfer and further processing||Flashtalking processes Personal Data submitted to, stored on, or sent in the course of delivering its ad serving services and related technical support in accordance with the Agreement and Addendum.|
|The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period||Personal data will be retained in accordance with Flashtalking’s retention policies, for only as long as is required to meet Flashtalking’s legal, regulatory and operational requirements and as necessary to perform services.|
|For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing||Flashtalking processes Personal Data submitted to, stored on, or sent in the course of delivering its ad serving services and related technical support in accordance with the Agreement and Addendum.|
Annex I C. Competent Supervisory Authority
|Competent supervisory authority/ies||As specified by the data exporter.|
- h) Annex II of the EU SCCs shall be specified as follows:
ANNEX II Technical and Organisational Measures Including Technical and Organisational Measures to Ensure the Security of the Data
|Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.||Flashtalking maintains and enforces commercially reasonable information security and physical security policies, procedures and standards, that are designed (i) to insure the security and confidentiality of Customer’s records and information, (ii) to protect against any anticipated threats or hazards to the security or integrity of such records, and (iii) to protect against unauthorized access to or use of such records or information which could result in substantial harm (the “Flashtalking Information Security Policies”). At a minimum, the Flashtalking Information Security Policies are designed to meet the SOC 2 and other industry standards, as well as any revisions, other standards or objectives that supersede or replace the foregoing.|
Flashtalking engages its independent certified auditors to conduct a review of Flashtalking Corporation’s operations and procedures at Flashtalking’s cost. The auditors conduct the review in accordance with the American Institute of Certified Public Accounts Statement on Standards for Attestation Engagements No. 18 SOC 2 Type II (“SOC 2”) and record their findings and recommendations in a report to Flashtalking. Upon request, and subject to standard confidentiality obligations, Flashtalking will provide its most recent SOC 2 and, in Flashtalking’s reasonable discretion, additional information reasonably requested to address questions or concerns regarding the SOC 2 findings.
|For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter||In respect of Flashtalking Services: initiatives, products, processes and supporting technology are assessed from a data privacy perspective. Flashtalking ensures that its subprocessors personal data processing activities meet Flashtalking’s data privacy standards, and Flashtalking’s written agreements with its subprocessors impose the same obligations on its subprocessors as are imposed on Flashtalking as a data importer under the Clauses.|
- i) Annex III of the EU SCCs can be found here.
Part 1: Tables
Table 1: Parties
|The Parties||Exporter (who sends the Restricted Transfer)||Importer (who receives the Restricted Transfer)|
|Parties’ details||Full legal name:|
Trading name (if different):
Main address (if a company registered address):
Official registration number (if any) (company number or similar identifier):
|Full legal name: Flashtalking, Inc.|
Main address: 50 Washington Street, Norwalk, CT 06854
Official registration number (if any) (company number or similar identifier):
|Key Contact||Full Name (optional):|
Contact details including email:
|Full Name (optional): Nick Galassi|
Job Title: Co-founder and CFO
Contact details including email: email@example.com
|Signature (if required for the purposes of Section 2)|
Table 2: Selected SCCs, Modules and Selected Clauses
|Addendum EU SCCs||The version of the Approved EU SCCs which this Addendum is appended to, detailed below, including the Appendix Information:|
Date: 4 June 2021
Reference (if any): 2021/914/EU
Other identifier (if any): See link
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:|
|Annex 1B: Description of Transfer:|
|Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data:|
|Annex III: List of Sub processors (Modules 2 and 3 only):|
Table 4: Ending this Addendum when the Approved Addendum Changes
|Ending this Addendum when the Approved Addendum changes||Which Parties may end this Addendum as set out in Section 19:|
☐ neither Party
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:
|Addendum||This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.|
|Addendum EU SCCs||The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.|
|Appendix Information||As set out in Table 3.|
|Appropriate Safeguards||The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR.|
|Approved Addendum||The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.|
|Approved EU SCCs||The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.|
|ICO||The Information Commissioner.|
|Restricted Transfer||A transfer which is covered by Chapter V of the UK GDPR.|
|UK||The United Kingdom of Great Britain and Northern Ireland.|
|UK Data Protection Laws||All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.|
|UK GDPR||As defined in section 3 of the Data Protection Act 2018.|
4) This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfills the Parties’ obligation to provide the Appropriate Safeguards.
5) If the provisions included in the 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.
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:
|Mandatory Clauses||Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.|