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Attachment – The Standard Contractual Clauses (Processors)

Attachment – The Standard Contractual Clauses (Processors) Acceptance of the OneB Terms of Service by you (as data exporter) includes acceptance of this Attachment, which is countersigned by OneB, Inc. Capitalized terms that are not defined herein will have the same meaning as specified in the OneB Terms of Service. In the event of a conflict between the OneB Terms of Service and this Attachment, the parties agree that this Attachment shall control interpretation of any inconsistency. However, the documents shall, to the extent possible, be construed to be consistent.

In countries where regulatory approval is required for use of the Standard Contractual Clauses, the Standard Contractual Clauses cannot be relied upon under European Commission 2010/87/EU (of February 2010) to legitimize export of data from the country, unless data exporter has the required regulatory approval.

References to various Articles from the Directive 95/46/EC in the Standard Contractual Clauses below will be treated as references to the relevant and appropriate Articles in the GDPR.

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, data exporter and OneB, Inc. (as data importer, whose signature appears below), each a "party," together "the parties," have agreed on the following Contractual Clauses (the "Clauses" or "Standard Contractual Clauses") in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1: Definitions (a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2: Details of the transfer The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 below which forms an integral part of the Clauses.

Clause 3: Third-party beneficiary clause

The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4: Obligations of the data exporter The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 below;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the data importer The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11; and

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6: Liability

The parties agree that any data subject who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and jurisdiction

The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8: Cooperation with supervisory authorities

The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9: Governing Law. The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10: Variation of the contract The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Subprocessing

The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12: Obligation after the termination of personal data processing services

The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses Data exporter: You are the data exporter; a user of OneB Technology as defined in the OneB Terms of Service.

Data importer: The data importer OneB, a global producer of software and services.

Data subjects: Data subjects include the data exporter’s representatives and end-users including employees, contractors, collaborators, and customers of the data exporter. Data subjects may also include individuals attempting to communicate or transfer personal information to users of the services provided by data importer. OneB acknowledges that, depending on data exporter’s use of the OneB Technology, data exporter may elect to include personal data from any of the following types of data subjects in the personal data:

Employees, contractors and temporary workers (current, former, prospective) of data exporter; Dependents of the above; Data exporter's collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former); Users (e.g., customers, clients, visitors, etc.) and other data subjects that are users of data exporter's services; Partners, stakeholders or individuals who actively collaborate, communicate or otherwise interact with employees of the data exporter and/or use communication tools such as apps and websites provided by the data exporter; Stakeholders or individuals who passively interact with data exporter (e.g., because they are the subject of an investigation, research or mentioned in documents or correspondence from or to the data exporter); Minors; or Professionals. Categories of data: The personal data transferred that is included in e-mail, documents and other data in an electronic form in the context of the OneB Technology. OneB acknowledges that, depending on data exporter’s use of the OneB Technology, data exporter may elect to include personal data from any of the following categories in the personal data:

Basic personal data including email address; Authentication data [for example user name, password (hashed and not accessible by OneB) and sign-in history]; Contact information [(for example addresses email, phone numbers, and social media identifiers (if a user authenticates with social media)]; Unique identification numbers and signatures (for example IP addresses, and unique identifiers in tracking cookies or similar technology); Pseudonymous identifiers; Commercial Information (for example history of purchases, special offers, subscription information, and purchase history); Location data [for example, IP Address (with the ability for the developer to turn off the last octet)]; Audio data may be routed through OneB Technology; Device identification (for example if a developer is using the OneB SKD, device data is collected); Profiling (for example a developer can turn on a moderation tool to scan for inappropriate user names, event data, IP addresses, apps installed, or profiles based on marketing preferences); Education data (for example education history, current education, grades and results, highest degree achieved, learning disability); or Any other personal data identified in Article 4 of the GDPR. Processing operations: The personal data transferred will be subject to the following basic processing activities:

a. Duration and Object of Data Processing. The duration of data processing shall be for the term designated under the OneB Terms of Service between data exporter and the entity to which these Standard Contractual Clauses are annexed ("OneB"). The objective of the data processing is the performance of OneB Technology.

b. Scope and Purpose of Data Processing. The scope and purpose of processing personal data is described in the Section 4.2 of the OneB Terms of Service. The data importer operates a global network of data centers and management/support facilities, and, subject to data exporter’s documented instructions, processing may take place in any jurisdiction where data importer or its sub-processors operate such facilities in accordance with the Section 4.5 of the OneB Terms of Service.

c. Game Data and Personal Data Access. For the term designated under the OneB Terms of Service data importer will at its election and as necessary under applicable law implementing Article 12(b) of the EU Data Protection Directive, either: (1) provide data exporter with the ability to correct, delete, or block Game Data and personal data, or (2) make such corrections, deletions, or blockages on its behalf.

d. Data Exporter’s Instructions. For OneB Technology, data importer will only act upon data exporter’s instructions.

e. Game Data and Personal Data Deletion or Return. Upon expiration or termination of data exporter’s use of OneB Technology, it may extract Game Data and personal data and data importer will delete Game Data and personal data, each in accordance with the OneB Terms of Service.

Subcontractors: In accordance with Section 4.6 of the OneB Terms of Service, the data importer may hire other companies to provide limited services on data importer’s behalf, such as providing customer support. Any such subcontractors will be permitted to obtain Game Data and personal data only to deliver the services the data importer has retained them to provide, and they are prohibited from using Game Data and personal data for any other purpose.

Appendix 2 to the Standard Contractual Clauses Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

Personnel. Data importer’s personnel will not process Game Data or personal data without authorization. Personnel are obligated to maintain the confidentiality of any such Game Data and personal data and this obligation continues even after their engagement ends.
Data Privacy Contact. The data privacy officer of the data importer can be reached at the following address:

OneB Technology Corporation ...

Technical and Organization Measures. The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect Game Data and personal data, as defined in Section 4.5 of the Terms of Service, against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows: The technical and organizational measures, internal controls, and information security routines set forth in Section 4.5 of the Terms of Service are hereby incorporated into this Appendix 2 by this reference and are binding on the data importer as if they were set forth in this Appendix 2 in their entirety.
GDPR Article 28(3). The data exporter as the Controller and the data importer as the Processor agree that GDPR also applies between the parties with effect from 25 May, 2018, including GDPR article 28 no. 3 to stipulate that the data importer:

a) processes the personal data only on documented instructions from the data exporter as the Controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

c) takes all measures required pursuant to GDPR Article 32;

d) respects the conditions referred to in GDPR Article 28 paragraphs 2 and 4 for engaging another processor;

e) taking into account the nature of the processing, assists the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights laid down in GDPR Chapter III;

f) assists the Controller in ensuring compliance with the obligations pursuant to GDPR Articles 32 to 36 taking into account the nature of processing and the information available to the Processor;

g) at the choice of the Controller, deletes or returns all the personal data to the Controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

h) makes available to the Controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the Controller. With regard to GDPR Art 28 (3) point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes GDPR or other relevant data protection provisions.

Signing the Standard Contractual Clauses, Appendix 1 and Appendix 2 on behalf of the data importer:

SCC Signature / By: Kevin Gammill / Name: Kevin Gammill / Title: VP, Gaming Developer Experiences / Date: 10/21/2020

Additional Safeguards Addendum to Standard Contractual Clauses By this Additional Safeguards Addendum to Standard Contractual Clauses (this " Addendum"), OneB Inc. (" OneB") provides additional safeguards to You (" Customer") and additional redress to the data subjects to whom Customer’s personal data relates.

This Addendum supplements and is made part of, but is not in variation or modification of, the Attachment - Standard Contractual Clauses to the OneB Terms of Service (the " Standard Contractual Clauses").

Challenges to Orders. In addition to Clause 5(d)(i) of the Standard Contractual Clauses, in the event OneB receives an order from any third party for compelled disclosure of any personal data that has been transferred under the Standard Contractual Clauses, OneB shall:

(a) use every reasonable effort to redirect the third party to request data directly from Customer;

(b) promptly notify Customer, unless prohibited under the law applicable to the requesting third party, and, if prohibited from notifying Customer, use all lawful efforts to obtain the right to waive the prohibition in order to communicate as much information to Customer as soon as possible; and

(c) use all lawful efforts to challenge the order for disclosure on the basis of any legal deficiencies under the laws of the requesting party or any relevant conflicts with the law of the European Union or applicable Member State law.

For purpose of this section, lawful efforts do not include actions that would result in civil or criminal penalty such as contempt of court under the laws of the relevant jurisdiction.

Indemnification of Data Subjects. Subject to Sections 3 and 4, OneB shall indemnify a data subject for any material or non-material damage to the data subject caused by OneB’s disclosure of personal data of the data subject that has been transferred under the Standard Contractual Clauses in response to an order from a non-EU/EEA government body or law enforcement agency (a " Relevant Disclosure"). Notwithstanding the foregoing, OneB shall have no obligation to indemnify the data subject under this Section 2 to the extent the data subject has already received compensation for the same damage, whether from OneB or otherwise.
Conditions of Indemnification. Indemnification under Section 2 is conditional upon the data subject establishing, to OneB’s reasonable satisfaction, that:

(a) OneB engaged in a Relevant Disclosure;

(b) the Relevant Disclosure was the basis of an official proceeding by the non-EU/EEA government body or law enforcement agency against the data subject; and

The data subject bears the burden of proof with respect to conditions (a) though (c).

Notwithstanding the foregoing, OneB shall have no obligation to indemnify the data subject under Section 2 if OneB establishes that the Relevant Disclosure did not violate its obligations under Chapter V of the GDPR.

Scope of Damages. Indemnification under Section 2 is limited to material and non material damages as provided in the GDPR and excludes consequential damages and all other damages not resulting from OneB’s infringement of the GDPR.
Exercise of Rights. Rights granted to data subjects under this Addendum may be enforced by the data subject against OneB irrespective of any restriction in Clauses 3 or 6 of the Standard Contractual Clauses. The data subject may only bring a claim under this Addendum on an individual basis, and not part of a class, collective, group or representative action. Rights granted to data subjects under this Addendum are personal to the data subject and may not be assigned.
Notice of Change. In addition to Clause 5(b) of the Standard Contractual Clauses, OneB agrees and warrants that it has no reason to believe that the legislation applicable to it or its sub-processors, including in any country to which personal data is transferred either by itself or through a sub-processor, prevents it from fulfilling the instructions received from the data exporter and its obligations under this Addendum or the Standard Contractual Clauses and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by this Addendum or the Standard Contractual Clauses, it will promptly notify the change to Customer as soon as it is aware, in which case Customer is entitled to suspend the transfer of data and/or terminate the contract.
Termination. This Addendum shall automatically terminate if the European Commission, a competent Member State supervisory authority, or an EU or competent Member State court approves a different lawful transfer mechanism that would be applicable to the data transfers covered by the Standard Contractual Clauses (and if such mechanism applies only to some of the data transfers, this Addendum will terminate only with respect to those transfers) and that does not require the additional safeguards set forth in this Addendum.

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Attachment – The Standard Contractual Clauses (Processors)​

Attachment – The Standard Contractual Clauses (Processors)