1. Definitions. For the purposes of this DPA, the following terms shall have the following meanings:

“Adequate Country” means a country or territory recognized as providing an adequate level of protection for Personal Data under an adequacy decision made, from time to time, by (as applicable) (i) the Secretary of State, the Information Commissioner's Office (“ICO”) and/or under applicable UK law (including the UK GDPR), or (ii) the European Commission under the EU GDPR;

“Account” means Customer’s account within the Service in which Customer stores, processes and manages Customers Personal.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.

“Company Group” means the Cambium Learning Group, Inc., and includes Lexia Learning and all Affiliates.

"Controller" means an entity that determines the purposes and means of the Processing of Personal Data.

"Data Protection Laws" means all data protection and privacy laws applicable to the respective party in its role in the Processing of Personal Data under the Agreement, including, but not limited to, where applicable, the EU GDPR, and the UK GDPR, as may be amended from time to time.

"EU GDPR" means General Data Protection Regulation (EU) 2016/679.

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

"Personal Data" means any information relating to an identified or identifiable natural person that is sufficient to cause such person to be identified directly or indirectly, and includes similarly defined terms in Data Protection Laws.

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

"Processor" means an entity that Processes Personal Data on behalf of a Controller.

"Purposes" shall mean (i) Company’s provision, support, maintenance and improvement of the Services under the Agreement and this DPA, including Processing initiated by Customer users in their use of the Services, and (ii) further documented, reasonable instructions from Customer agreed upon by the parties.

"Services" means the generally available software-as-a-service offering provisioned and supported by Lexia Learning and described in the Service Order with Customer, and any other services provided by Lexia Learning under the Service Order and Agreement, including but not limited to support and technical services.

"Subprocessor" means any Processors engaged by Company/Company Group to Process Customer Personal Data.

"UK GDPR" means the EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, and the Data Protection Act 2018.

2. SaaS-Based Services Delivered by Company.

a. The parties acknowledge and agree that the Services are publicly available offerings of Company’s SaaS-based subscription service and are provided in a multi-tenant, shared-database architecture and that individualized client-dedicated infrastructure and/or Processing is not part of the Services. Customer understands and agrees that user information, including Personal Data, is stored by Company in centrally organized data center facilities, for which client-dedicated user environments are achieved through logical segregation within a shared client infrastructure.

b. The parties agree that the categories of data subjects, type of Personal Data to be Processed, subject matter, duration, nature and purpose of the processing, are as described in Schedule 1 of this DPA and the Processing shall be as required to provide the Services.

3. Customer’s Obligations.

a. Customer remains the responsible Controller (or similar term under applicable law) for the Processing of the Personal Data subject to this DPA as instructed to Company. Subject to the provisions contained in Section 4g below, Customer agrees that its provision of Personal Data to Company and its instructions to Company related to the Processing of Personal Data shall at all times be in compliance with all applicable laws, including Data Protection Laws, in particular with any notice and/or consent requirements or authorizations necessary under Data Protection Laws for Company to lawfully Process Customer Personal Data for the Purposes, and, notwithstanding anything to the contrary in the Agreement, Customer shall remain responsible for and protect Company from any third party claims, damages or enforcement actions related to Company’s Processing of Personal Data in accordance with Customer’s instructions.

b. Customer shall not, without the prior express written consent of Company as reflected in a fully executed written amendment to this DPA specifically referencing this Section 3(b), transfer or permit to be transferred to Company any sensitive Personal Data (which may include, but is not limited to, social security number, tax identification number, Customer end user financial information, Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purposes of uniquely identifying a natural person, health or medical data, or data concerning a natural person's sex life or sexual orientation).

c. This DPA shall also extend to Customer Affiliates under the Agreement, subject to the following conditions: (a) any additional Processing instructions from Customer Affiliates shall and must be communicated to Company only by and through Customer, and Company shall be entitled to rely solely on Customer’s instructions relating to all Customer and Customer Affiliate Personal Data under the Agreement; (b) Customer shall remain responsible for its Affiliates’ compliance with this DPA and all acts and/or omissions by a Customer Affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer; and (c) Customer Affiliates shall be entitled to enforce the terms of this DPA only through Customer acting on behalf of Customer Affiliates (Customer Affiliates shall not bring any claim directly against Company, unless Data Protection Laws require the Customer Affiliate to be the sole party to such claim), and all such claims shall be considered claims made by Customer and shall be subject to any liability limitations or restrictions set forth in the Agreement.

4. Company’s Obligations.

a. Company will Process the Personal Data in compliance with applicable law and only for the purpose of fulfilling its obligations and to perform its Services under the Agreement or as otherwise instructed in writing by Customer, which instructions are defined in the Agreement and applicable order document agreed to by the parties, in accordance with the terms of this DPA. For the avoidance of doubt, Company acknowledges that it is prohibited from retaining, using or disclosing Personal Data for any purpose other than providing the Services to Customer.

b. Company will notify Customer in writing immediately upon making a determination that it has not met, or can no longer meet, its obligations under Section 4(a) of this DPA, and, in such case, will abide by Customer’s written instructions, including instructions to cease further Processing of the Personal Data, and take any necessary steps to remediate any Processing of such Personal Data not in accordance with Section 4(a) of this DPA. To the extent further costs are involved in abiding by Customer’s instructions, the terms of Section 4(f) shall apply.

c. With respect to the Personal Data transferred to or received by Company under the Agreement, Company has implemented, and will maintain, a written information security program that includes technical, organizational, and physical security measures aimed at protecting Personal Data against accidental destruction or accidental loss, alteration, and unauthorized disclosure or access, including as set out at Schedule 2 to this DPA.

d. Company maintains security incident management policies and procedures and shall, to the extent permitted by law, promptly notify Customer of any unauthorized disclosure of Personal Data by Company or its Subprocessors of which Company becomes aware.

e. To the extent legally permitted, Company shall promptly notify Customer if it receives a request for any Personal Data from a court, government agency, law enforcement agency, or other authority, and will direct the court, government agency, law enforcement agency, or other authority to request such information directly from Customer. As part of this effort, Company may provide Customer's basic contact information to facilitate this communication. Notwithstanding, if Company is compelled to disclose Personal Data, Company will promptly notify Customer and deliver a copy of the request (except where Company is legally prohibited from doing so) to allow Customer to seek a protective order or any other appropriate remedy.

f. With respect to requests for audits or other additional instructions by Customer, unless otherwise expressly provided in the Agreement, the following shall apply: Company shall make available to the Customer all information available to demonstrate compliance with the obligations with respect to Company’s processing of Customer Personal Data, and to contribute to audits, including inspections, or as applicable, production of available documentation satisfactory to assess internal controls programs and compliance with applicable law, if and as required of Company under applicable law. If Customer wishes to change its instruction, then Customer has the right to request such a change by sending Company a written notice, and Company shall respond in good faith and provide Customer with information regarding Company's standard processes and an estimate of additional fees and costs for such instruction that would be payable by Customer and obtain Customer’s written confirmation of such fees prior to taking such action, to the extent such request or instruction is not part of the standard Services offering. Company shall not be obligated to address Customer’s requests or instructions until written agreement on additional payments, if any, has been executed by the parties to the Agreement. If the parties cannot come to an agreement on such payments, requests or instructions, Customer may terminate the affected Services under any Service Order(s) then in effect under the Agreement upon thirty (30) days written notice to Company, provided, however, that Customer shall pay any outstanding Service fees and costs for the remainder of the term agreed in the applicable Service Order and without affecting the remainder Agreement.

g. As required by applicable law, Company shall immediately inform Customer if, in its opinion, an instruction infringes applicable data privacy regulations.

h. Company will ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

i. Company shall provide assistance to Customer as may be reasonably necessary for Customer to comply with applicable data protection laws, including by assisting Customer in responding to requests for exercising data subject rights under applicable law, taking into consideration Company's access to Customer Personal Data and the Personal Data and administrator functionality available to Customer within the Service. If Company receives a request from any data subject of Customer’s for access to, correction, amendment, deletion of, or any other rights to such data subject’s Personal Data received or processed under the Services Agreement with Customer, Company shall promptly instruct the data subject to direct his/her request to Customer , and, to the extent legally permitted, Company shall not otherwise respond to such data subject request without Customer’s prior written instructions, and Company shall provide Customer with commercially reasonable cooperation and assistance in relation to handling such data subject’s request to exercise rights to such data subject’s Personal Data if and as directed by Customer. Where requests are manifestly excessive, e.g., because of their repetitive or non-customary character, Customer acknowledges and agrees that Company may apply additional reasonable fees for Company’s costs arising from such assistance.

j. The parties agree that, as part of the Services, Personal Data may be used by Company to verify, optimize and/or improve the Services and for related internal, business administration purposes.

5. Cross-Border Transfers

a. Customer agrees that its use of the Services may involve the transfer of Personal Data to, and processing of Personal Data in, locations outside of the UK and/or EEA from time to time (such as for purposes of providing support to Customer), including processing in the U.S. and any country in which Company, its Affiliates and Subprocessors perform the Services.

b. To the extent that Company processes Personal Data which is subject to the EU GDPR or UK GDPR outside of the EU/EEA or the UK, respectively, (except if in an applicable Adequate Country) the parties agree that the Standard Contractual Clauses for the Transfer of Personal Data to Data Processors Established In Third Countries pursuant to Commission Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries ("EU SCCs") or the UK International Data Transfer Addendum ("UK Addendum"), including the appendices attached thereto, are incorporated into this DPA as Schedules 4 and 5 respectively, and shall apply, as applicable, to such transfers. For the purposes of any transfers, Company shall be the "importer," and Customer established in the EU or UK shall be the "exporter" and each Party shall comply with its obligations under the EU SCCs and/or UK Addendum as applicable.

c. The parties agree that acceptance of the Agreement constitutes all necessary signatures to the EU SCCs/UK Addendum with respect to transfers to Company.

d. In the event that the EU SCCs, UK Addendum or other applicable transfer mechanism in place between the parties is replaced or ceases to comply with Data Protection Laws, Company agrees that it will negotiate in good faith to consider other methods for transfer compliant with applicable Data Protection Laws; provided however, that Company shall not be obligated to implement any transfer method that would, in Company’s sole determination, materially diverge from Company's current processing methods or otherwise may be reasonably objectionable to Company. In the event the parties are unable to agree upon another mutually acceptable transfer method within a reasonable period of time, either party may terminate the Agreement upon written notice.

6. Subprocessing.

a. In accordance with the structure of the Services as described in Section 2 of this DPA, Customer generally consents to Company’s use of Subprocessors and specifically consents to those Subprocessors currently engaged by Company, per Schedule 3 to this DPA, and members of the Company Group to provision and support the Services, and to perform Company's obligations under the Agreement in accordance with the terms of this DPA.

b. Company may, by giving prior notice to Customer, add or make changes to the Subprocessors. Customer may object to the appointment of any such additional Subprocessor within fourteen (14) calendar days of such notice on reasonable and specific grounds relating to the protection of Customer’s Personal Data, in which case Company shall have the right to cure the objection through one of the following options (to be selected at Company’s sole discretion): (a) Company will cancel its plans to use the Subprocessor with regard to Personal Data or will offer an alternative to provide the Services to Customer without such Subprocessor; or (b) Company will take such corrective steps identified by Customer in its objection (which remove Customer’s objection) and proceed to use the Subprocessor with regard to Personal Data; or (c) Company may cease to provide or Customer may agree not to use (temporarily or permanently) the particular aspect of the Services that would involve the use of such Subprocessor with regard to Personal Data, subject to a mutual agreement of the parties to adjust the remuneration for the impacted subscription Services, considering the reduced scope of the subscription Services. Objections to a Subprocessor shall be submitted to Company by following the directions set forth in the Subprocessor notice or Subprocessor list provided by Company to Customer. If none of the above options are reasonably available and the objection has not been resolved to the mutual satisfaction of the parties within thirty (30) days after Company’s receipt of Customer’s objection, either party may terminate the affected Services and Customer will be entitled to a pro-rata refund for prepaid fees based on the portion of the Services not performed as of the date of termination. Notwithstanding the foregoing, Company may replace a Subprocessor if the need for the change is urgent and necessary to provide the Services and continuity thereof. In such instance, Company shall notify Customer of the replacement as soon as reasonably practicable, and Customer shall retain the right to object to the replacement Subprocessor pursuant to this paragraph. Company agrees that its agreements with Subprocessors will include contractual commitments to protect and maintain the confidentiality and security of Personal Data consistent with Company’s obligations as processor under this Agreement, the requirements of applicable law, and taking into account the Personal Data processed and nature of the services provided by Subprocessors.

c. Company shall be liable for the acts and omissions of its Subprocessors to the same extent it would be liable if performing the services of each such Subprocessor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

7. Governing Law.

Without prejudice to the provisions of the EU SCCs or UK Addendum addressing the law which governs them, this DPA is governed by and construed in accordance with the laws of the jurisdiction provided for in the Agreement without regard for its choice of law rules.

8. Termination.

a. This DPA shall remain in full force and effect for so long as the Agreement remains in effect, and shall immediately terminate if the Agreement is terminated for any reason.

b. The Services include self-service Account administration and reporting tools enabling Customer’s designated Account Administrator User(s) to retrieve, access, delete and/or export reports with the Personal Data of its Authorized End Users at any time during the Service period. Upon expiration or termination of the Agreement, Company shall continue to make such Personal Data available for export by Customer (i.e., allow Customer to download reports) upon request made within thirty (30) days of termination or expiration of the Agreement. After such thirty (30) day period, Company shall have no obligation to maintain or provide any Personal Data and may, unless legally prohibited, securely remove and delete or otherwise render unreadable or undecipherable Personal Data in its possession or control in accordance with Company’s then-current data removal protocols, with no liability to Customer, unless otherwise agreed to by Company and Customer in writing in the Agreement for the applicable service. When Personal Data removal has been completed, Company will provide written confirmation to Customer of same upon written request.

9. Miscellaneous

a. This DPA is subject to the terms of, and fully incorporated and made part of, the Agreement, and except as provided in this DPA, the Agreement remains unchanged and in full force and effect. Except as expressly stated otherwise, in the event of any conflict or inconsistency between the terms of the Agreement and the terms of this DPA, the relevant terms of this DPA shall take precedence. This DPA shall amend and supplement any provisions relating to Processing of Personal Data previously negotiated or agreed to between the parties in the Agreement (including any existing Data Processing Exhibit or any other data processing terms within the Agreement).

b. The Agreement shall apply only between Company and Customer and shall not confer any rights to any third parties.

c. All other terms and conditions of the Agreement remain unchanged.

Schedule 1: Description of processing

Subject Matter of the Processing:

Company's provision of the Services to Customer.

Duration of Processing:

Company will process the Personal Data for the duration of the Agreement, or until the Personal Data is no longer necessary for the purposes of either party performing its obligations under the Agreement (to the extent applicable) unless otherwise agreed between the parties in writing.

Nature and Purpose of the Processing:

Provision of Services consisting in publicly available offerings of Lexia Learning’s SaaS-based educational subscriptions and associated services., including the collection, analysis, storage, duplication, deletion, disclosure and reporting as necessary to provide the Services and as may be further instructed by Customer 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, subject to the terms of the Agreement, and which may include, but is not limited to the following:

· Employees, agents, advisors, contractors, or other personnel of Customer or any of its subsidiaries or affiliates (who are natural persons), and any staff or student or other end users authorized by Customer to use the Services under the Agreement.

Categories of Personal Data

· Identification and contact data (name, email, username and password, class (student or staff/admin user), address, title, contact details (staff/admin));

· Financial information (credit card details, account details, payment information (staff/admin);

· Employment details (employer, job title, area of responsibility (staff/admin));

· IT information and connection data (IP, OS, device ID, MAC address), cookies data, general geographic location data (e.g., country/city);

· Product usage, progress, Speech Recognition Engine pronunciation log/voice recording, and/or other user interaction data or records;

Other Personal Data as may be provided by Customer or the data subject related to the use of the Services.

Sensitive Personal data to be transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as, e.g., strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

● None

Schedule 2: Technical and Organizational Security Measures

i. Access Controls – policies, procedures, and physical and technical controls designed: (i) to limit physical access to its information systems and the facility or facilities in which they are housed to properly authorized persons; (ii) to ensure that all members of its workforce who require access to Personal Data have appropriately controlled access, and to prevent those workforce members and others who should not have access from obtaining access; (iii) to authenticate and permit access only to authorized individuals and to prevent members of its workforce from providing Personal Data or information relating thereto to unauthorized individuals; and (iv) to encrypt and decrypt Personal Data where appropriate.

ii. Security Awareness and Training – a security awareness and training program for all members of the workforce (including management), which includes training on how to implement and comply with its Information Security Program.

iii. Security Incident Procedures – a Security Incident Response Plan, and policies and procedures to detect, respond to, and otherwise address security incidents, including procedures to monitor systems and to detect actual and attempted attacks on or intrusions into Personal Data or information systems relating thereto, and procedures to identify and respond to suspected or known security incidents, mitigate harmful effects of security incidents, and document security incidents and their outcomes.

iv. Contingency Planning – policies and procedures for responding to an emergency or other occurrence (for example, fire, vandalism, system failure, and natural disaster) that damages Personal Data or systems that contain Personal Data, including a data backup plan and a disaster recovery plan.

v. Device and Media Controls – policies and procedures that govern the receipt and removal of hardware and electronic media that contain Personal Data into and out of processing facilities, and the movement of these items within processing facilities, including policies and procedures to address the final disposition of Personal Data, and/or the hardware or electronic media on which it is stored, and procedures for removal of Personal Data from electronic media before the media are made available for re-use.

vi. Audit Controls – hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use electronic information, including appropriate logs and reports concerning these security requirements and compliance therewith.

vii. Security Audits - annual third party security audits, such as SSAE 16 SOC2, of hosting and data center providers, who also maintain current ISO 27001 certifications.

viii. Data Integrity – policies and procedures to ensure the confidentiality, integrity, and availability of Personal Data and protect it from disclosure, improper alteration, or destruction.

ix. Storage and Transmission Security – technical security measures to guard against unauthorized access to Personal Data that is being transmitted over an electronic communications network, including a mechanism to ensure Personal Data in electronic form is encrypted while in transit and in storage on networks or systems to which unauthorized individuals may have access.

x. Assigned Security Responsibility – designate a security official responsible for the development, implementation, and maintenance of its Information Security Program, and inform Company upon request as to the person responsible for security.

xi. Storage Media - policies and procedures to ensure that prior to any storage media containing Personal Data being assigned, allocated or reallocated to another user, or prior to such storage media being permanently removed from a facility, irreversibly delete such Personal Data from both a physical and logical perspective, such that the media contains no residual data, or if necessary physically destroy such storage media such that it is impossible to recover any portion of data on the media that was destroyed. Also maintain an auditable program implementing the disposal and destruction requirements set forth in this Section for all storage media containing Personal Data.

xii. Testing – regularly test the key controls, systems and procedures of its Information Security Program to ensure that they are properly implemented and effective in addressing the threats and risks identified.

xiii. Adjust the Program – monitor, evaluate, and adjust, as appropriate, the Information Security Program in light of any relevant changes in technology or industry security standards, the sensitivity of the Personal Data, internal or external threats to the Personal Data, and changing business arrangements, such as mergers and acquisitions, alliances and joint ventures, outsourcing arrangements, and changes to information systems.

Schedule 3: List of Subprocessors

To request a list of current Subprocessors used by Company to perform the Services, please contact: https://help.lexialearning.com/s/contact. When submitting the request, please identify the full name and address (including country) of the school, district or other educational entity customer that purchased the license(s) to the Lexia Learning Services; the name of the business entity that sold the license(s) to the Lexia Learning Services to the educational entity customer; and the name of each Lexia Learning product/service purchased as part of the Lexia Learning Services.

Schedule 4: EU Standard Contractual Clauses

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”)

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

(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 - Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

(iii) Clause 9 - Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

(iv) Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

(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 the transfer(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 - Optional

Docking clause

Not used

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^{^[1]} (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) 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 fourteen (14) calendar days 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. (8) 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) (c)

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.

(b) 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:

(i) 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;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) 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.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) 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^{^[2]};

(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 the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow 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.

The Parties agree to submit themselves to the jurisdiction of such courts.

[1] The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

[2] As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.

Appendix to EU SCCs: Annex I

DETAILS OF THE PROCESSING

A. LIST OF PARTIES

MODULE TWO: Transfer controller to processor

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: Customer

Address: Customer's address is 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 and the Agreement.

Signature and date: By signing the Agreement and subsequently engaging in any international transfer under this DPA, the data exporter will be deemed to have signed the DPA and this Annex I.

Role (controller/processor): Controller

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: Lexia Learning Systems LLC

Address: 300 Baker Avenue, Concord, Massachusetts (USA) 01742

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 and the Agreement.

Signature and date: By signing and/or otherwise accepting the Service Order(s) for the Services provisioned under the Agreement and subsequently engaging in any international transfer under this DPA, the data importer will be deemed to have signed the DPA and this Annex I.

Role (controller/processor): Processor

B. DESCRIPTION OF TRANSFER

MODULE TWO: Transfer controller to processor

Categories of data subjects whose personal data is transferred