Data Protection Addendum

Last Updated: December 3, 2020

PARTIES

This Data Processing Addendum (this "DPA") is between Customer (as defined in the Terms of Service) and Shogun Labs, Inc. a Delaware company (the "Service Provider") (each a "Party" and collectively the "Parties").

BACKGROUND

This DPA is supplemental to and subject to the Terms of Service (collectively, the "Agreement"). In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.

Interpretation

Unless otherwise set out below, each capitalized term in this DPA shall have the meaning set out in the Agreement. In this DPA, unless the context requires otherwise:

"Affiliates" means the current and future respective affiliated offices of Customer;

"CCPA" means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this DPA;

CCPA Consumer” means a “consumer” as such term is defined in the CCPA;

"CCPA Personal Information" means the “personal information” (as defined in the CCPA) that the Service Provider Processes on behalf of the Customer and/or the Customer’s Affiliates in connection with the Service Provider’s provision of the Services;

"Controller" has the meaning given in the GDPR;

"Customer Personal Data" means the CCPA Personal Information and the GDPR Personal Data;

"Data Processing Services" means the Processing of CCPA Personal Information for any purpose permitted by the CCPA, such as for a permitted "business purpose," as such term is defined in the CCPA, or for any other purpose expressly permitted by the CCPA;

"Data Subject" has the meaning given in the GDPR;

"EU Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council, the UK Data Protection Act and the UK GDPR (the "GDPR");

"European Economic Area" or "EEA" means the Member States of the European Union together with the UK, Switzerland, Iceland, Norway, and Liechtenstein;

"GDPR Personal Data" means the "personal data" (as defined in the GDPR) that the Service Provider Processes on behalf of the Customer and/or the Customer’s Affiliates in connection with the Service Provider’s provision of the Services;

"Processing" has the meaning given in the GDPR, and "Process" will be interpreted accordingly;

"Processor" has the meaning given in the GDPR;

"Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Personal Data;

Sell” and “Sale” have the meaning given in the CCPA;

Services” means the service(s) provided by Service Provider to the Customer under the Agreement, including the Data Processing Services;

"Standard Contractual Clauses" means the Standard Contractual Clauses (processors) approved by the European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission (which will automatically apply), together with Schedule 1 and Schedule 2 of this DPA; a copy of the Standard Contractual Clauses as of the date of this DPA is attached as Schedule 3 of this DPA for the Parties’ convenience;

"Subprocessor" means any Processor engaged by the Service Provider who agrees to receive from the Service Provider any Customer Personal Data; and

"Supervisory Authority" has the meaning given in the GDPR.

  1. APPLICABILITY TO CUSTOMER PERSONAL DATA. Except as otherwise provided in this DPA, this DPA shall apply to all Processing of Customer Personal Data by or on behalf of the Service Provider.  

REQUIREMENTS FOR GDPR PERSONAL DATA:

  1. GDPR PERSONAL DATA PROCESSING
  1. Applicability to GDPR Personal Data. Clauses 2 through 5 of this DPA shall only apply to the Processing of GDPR Personal Data by or on behalf of the Service Provider
  2. Role of the Parties. For the purposes of the EU Data Protection Laws, the Parties acknowledge and agree that the Service Provider acts as Processor and the Customer and/or Customer’s Affiliates act as Controllers. The Customer acts as a single point of contact for its Affiliates with respect to compliance with EU Data Protection Laws, such that where the Service Provider gives notice to the Customer, such information or notice is deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with EU Data Protection Laws under this DPA will be brought by the Customer, whether acting for itself or on behalf of an Affiliate.
  3. Instructions for GDPR Personal Data Processing

The Service Provider will only Process GDPR Personal Data in accordance with:

  1. the Agreement, to the extent necessary to provide the Services to the Customer, and
  2. the Customer’s instructions,

unless Processing is required by European Union or Member State law to which Service Provider is subject, in which case the Service Provider shall, to the extent permitted by European Union or Member State law, inform the Customer of that legal requirement before Processing that GDPR Personal Data.

  1. Processing GDPR Personal Data outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and the Service Provider on additional instructions for Processing.
  2. Required consents and notices

Where required by applicable EU Data Protection Laws, the Customer will ensure that it has obtained/will obtain all necessary consents, and has given/will give all necessary notices, for the Processing of GDPR Personal Data by the Service Provider in accordance with the Agreement.

  1. TRANSFER OF GDPR PERSONAL DATA
  1. Customer acknowledges and agrees that Service Provider may retain Subprocessors for the purpose of providing services under the Agreement, and hereby provides general authorization to the use of Subprocessors for such purposes and to all Subprocessors retained by Service Provider as of the date of this DPA. If Service Provider engages a Subprocessor that will process Personal Data after the date of this DPA, Service Provider will promptly provide Customer with notice identifying such Subprocessor by posting details regarding any such Subprocessor on its website or by email or “push notification” to Customer. Customer will have ten (10) days from receipt of such notice to notify Service Provider of its objection to such Subprocessor (providing specific details of the objection), and Service Provider and Customer will thereafter have a commercially reasonable period of time to cooperate in good faith to address the objection. If Service Provider is unable to address the objection to Customer’s satisfaction, then Customer’s sole and exclusive remedy is to terminate the Agreement. If Customer terminates pursuant to this Section 3.1, then all fees owed by Customer to Service Provider for the then-current term of the Agreement will immediately become due.
  2. Liability of Subprocessors of GDPR Personal Data

The Service Provider shall at all times remain responsible for compliance with its obligations under this DPA with respect to the EU Data Protection Laws and will be liable to the Customer for the acts and omissions of any Subprocessor approved by the Customer that Processes GDPR Personal Data as if they were the acts and omissions of the Service Provider.

  1. Prohibition on Transfers of GDPR Personal Data

GDPR Personal Data from a Customer’s establishments in the EEA may only be exported or accessed by the Service Provider or its Subprocessors outside the EEA (the "International Transfer"):

  1. if the recipient, or the country or territory in which it Processes GDPR Personal Data, ensures an adequate level of protection for the rights and freedoms of Data Subjects in relation to the Processing of GDPR Personal Data as determined by the European Commission; or
  2. in accordance with clause 3.4.
  1. Standard Contractual Clauses
  1. The Standard Contractual Clauses apply where there is an International Transfer to a country or territory that does not ensure an adequate level of protection for the rights and freedoms of Data Subjects in relation to the processing of GDPR Personal Data as determined by the European Commission.
  2. For Subprocessors based outside the EEA and outside any country for which the European Commission has published an adequacy decision (the "Third Country Subprocessors"), the Service Provider will enter into an unchanged version of the Standard Contractual Clauses with Third Country Subprocessors prior to the Subprocessor’s processing of GDPR Personal Data. The Customer hereby accedes to the Standard Contractual Clauses between the Service Provider and the Third Country Subprocessor. The Service Provider will enforce the Standard Contractual Clauses against the Subprocessor on behalf of the Customer if a direct enforcement right is not available under EU Data Protection Laws.
  3. If there is an inconsistency between any of the provisions of this DPA and the provisions of the Standard Contractual Clauses, the provisions of the Standard Contractual Clauses shall prevail.
  1. ACCESS REQUESTS AND DATA SUBJECT RIGHTS
  1. Data Subject Requests

Unless otherwise required by applicable law, the Service Provider shall promptly notify the Customer of any request received by the Service Provider or any Subprocessor from a Data Subject in respect of the GDPR Personal Data of the Data Subject, and shall not respond to the Data Subject.

  1. The Service Provider shall, where possible, assist the Customer with ensuring its compliance under applicable EU Data Protection Laws, and in particular shall:
  1. provide the Customer with the ability to correct, delete, block, access or copy the GDPR Personal Data of a Data Subject, or
  2. promptly correct, delete, block, access or copy GDPR Personal Data within the Services at the Customer’s request.
  1. Data Subject Rights

Where applicable by virtue of Article 28(3)(e) of the GDPR, taking into account the nature of the Processing, the Service Provider shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR.

  1. Data Protection Impact Assessment and Prior Consultation
  1. Where applicable by virtue of Article 28(3)(f) of the GDPR, the Service Provider shall provide reasonable assistance to the Customer with any data protection impact assessments which are referred to in Article 35 of the GDPR and with any prior consultations to any Supervisory Authority of the Customer which are referred to in Article 36 of the GDPR, in each case solely in relation to Processing of GDPR Personal Data and taking into account the nature of the Processing and information available to the Service Provider

REQUIREMENTS FOR CCPA PERSONAL INFORMATION:

  1. CCPA PERSONAL INFORMATION PROCESSING
  1. Applicability to CCPA Personal Information. Clauses 6 through 8 of this DPA shall only apply to the Processing of CCPA Personal Information by or on behalf of the Service Provider.  
  2. Role of the Parties. For the purposes of the CCPA, the Parties acknowledge and agree that the Service Provider will act as a “Service Provider” as such term is defined in the CCPA, in its performance of its obligations pursuant to the Agreement. The Customer will act as a single point of contact for its Affiliates with respect to CCPA compliance, such that if the Service Provider gives notice to the Customer, such information or notice will be deemed received by the Customer’s Affiliates.  The Parties acknowledge and agree that any claims in connection with the CCPA under this DPA will be brought by the Customer, whether acting for itself or on behalf of an Affiliate.
  3. Instructions for CCPA Personal Information Processing

Service Provider shall not retain, use or disclose CCPA Personal Information for any purpose other than for the specific purpose of providing the Services, or as otherwise permitted by the CCPA. Service Provider acknowledges and agrees that it shall not retain, use or disclose CCPA Personal Information for a commercial purpose other than providing the Services.

  1. Required consents and notices

Where required by applicable laws, the Customer will ensure that it has obtained/will obtain all necessary consents, and has given/will give all necessary notices, for the Processing of CCPA Personal Information by the Service Provider in accordance with the Agreement.

  1. TRANSFER OF CCPA PERSONAL INFORMATION
  1. No Disclosure of CCPA Personal Information

The Service Provider shall not disclose, release, transfer, make available or otherwise communicate any CCPA Personal Information to another business or third party without the prior written consent of the Customer unless and to the extent that such disclosure is made to a Subprocessor for a business purpose, provided that Service Provider has entered into a written agreement with Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of CCPA Personal Information as are imposed on the Service Provider under this DPA and the Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict the Service Provider’s ability to disclose CCPA Personal Information to comply with applicable laws or as otherwise permitted by the CCPA.

  1. No Sale of CCPA Personal Information

The Service Provider shall not Sell any Customer Personal Data to another business or third party without the prior written consent of the Customer.

  1. Liability of Subprocessors of CCPA Personal Information

The Service Provider shall at all times remain responsible for compliance with its obligations under this DPA with respect to the CCPA and will be liable to the Customer for the acts and omissions of any Subprocessor or other third party to whom Service Provider has disclosed or permitted to Process CCPA Personal Information as if they were the acts and omissions of the Service Provider.

  1. CONSUMER RIGHTS REQUESTS
  1. CCPA Consumer Rights Requests

On and after the effective date of the CCPA, Service Provider shall comply with all applicable requirements of the CCPA, and shall, where possible and at Service Provider’s expense, assist Customer with ensuring its compliance under applicable CCPA requirements, and in particular shall:

  1. provide the Customer with the ability to delete, block, access or copy the CCPA Personal Information of a CCPA Consumer, or
  2. promptly delete, block, access or copy CCPA Personal Information within the Services at the Customer’s request.
  1. Notice of Requests

The Service Provider shall promptly notify the Customer of any request received by the Service Provider or any Subprocessor from a CCPA Consumer in respect of the CCPA Personal Information of the CCPA Consumer, and shall not respond to the CCPA Consumer.

  1. CCPA Policies, Procedures, and Controls

Prior to the effective date of the CCPA, Service Provider shall adopt policies, procedures, and controls that enable Service Provider to respond, and to cause its agents and employees to respond, promptly to any rights request pursuant to the CCPA, including any disclosure request, deletion request or opt-out request

REQUIREMENTS FOR ALL CUSTOMER PERSONAL DATA:

  1. SECURITY
  1. Service Provider Security Obligations

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Service Provider shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk including, where applicable by virtue of Article 28(3)(c) of the GDPR, and as appropriate, the measures referred to in Article 32(1) of the GDPR. Without limiting the generality of the foregoing, the Service Provider shall put in place and maintain the technical and organisational measures as set out in Schedule 3 of this DPA to protect the Customer Personal Data against any Security Incident.

  1. Service Provider Audits

The Customer may audit (by itself or using independent third-party auditors) the Service Provider’s compliance with this DPA once annually.

  1. Where applicable by virtue of Article 28(3)(h) of the GDPR, the Service Provider shall make available to the Customer on request all information necessary to demonstrate compliance with this DPA. The Service Provider shall promptly inform the Customer if, in its opinion, an instruction pursuant to this clause 9.3 infringes the GDPR or other EEA or Member State or UK data protection provisions.
  2. Security Incident Notification

If the Service Provider or any Subprocessor becomes aware of a Security Incident, then the Service Provider shall promptly notify the Customer, take any additional steps that are reasonably necessary to remedy any non-compliance with this DPA, including complying with all applicable requirements of the Agreement, and reasonably cooperate in the investigation of the Security Incident.

  1. Service Provider Employees and Personnel

The Service Provider shall limit access to Customer Personal Data to those employees or other personnel who have a business need to have access to such Customer Personal Data. Further, the Service Provider shall ensure that such employees or other personnel are bound by a duty of confidentiality of such Customer Personal Data in accordance with the provisions of this DPA.

  1. TERMINATION
  1. Deletion of data

Subject to clause 10.2 and 10.3 below, the Service Provider shall promptly and in any event within 90 (ninety) days of the date of termination of the Agreement (or within such shorter timeframe as may be required by the Agreement):

  1. return a complete copy of all Customer Personal Data by secure file transfer in such a format as notified by the Customer to the Service Provider; and
  2. delete and procure the deletion of all other copies of Customer Personal Data Processed by the Service Provider or any Subprocessors.
  1. Subject to clause 10.3 below, the Customer may in its absolute discretion notify the Service Provider in writing within 30 (thirty) days after the date of termination of the Agreement to require the Service Provider to delete and procure the deletion of all copies of Customer Personal Data Processed by the Service Provider or any Subprocessors. The Service Provider shall comply with any such written request within 90 (ninety) days after the date of termination of the Agreement (or within such shorter timeframe as may be required by the Agreement), and for the avoidance of doubt where this clause 10.2 applies, the Service Provider shall not be required to provide a copy of such Customer Personal Data to the Customer.
  2. The Service Provider may retain Customer Personal Data to the extent required by applicable laws, and only to the extent and for such period as required by applicable laws, and always provided that the Service Provider shall ensure the confidentiality of all such Customer Personal Data in accordance with this DPA and the Agreement and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
  3. The Service Provider shall provide written certification to Customer that it has fully complied with this clause 10 within 90 (ninety) days after the date of termination of the Agreement (or within such shorter timeframe as may be required by the Agreement).
  1. BENEFIT TO AFFILIATES

This DPA is entered into on the date of the DPA first set out above.

On behalf of the Customer:

Customer, on behalf of itself, its Affiliates, and its current and future affiliated offices:


Name:

Position:

Address:

Signature……………………………………….

Date……………………………………………..

On behalf of the Service Provider:

Shogun Labs, Inc.:

Position:

Address:

Signature……………………………………….

Date……………………………………………..

Schedule 1


Details of the transfer

Data Exporter

The Customer subscribed to the Services that include Processing of GDPR Personal Data.

Data Importer

Service Provider and its Subprocessors.

Data Subjects

Unless provided otherwise by the Data Exporter, transferred GDPR Personal Data relates to the following categories of data subjects: customer end user data.

Data Categories

The Customer determines the categories of data entered onto the Services. The transferred GDPR Personal Data typically relates to the following categories of data: e.g., name, phone numbers, email address, address data where accessed for the limited purpose of providing customer service and in form submission.

Special Data Categories (if appropriate)

The transferred GDPR Personal Data typically concerns the following special categories of data: None

Processing Operations

The transferred GDPR Personal Data is subject to the following basic processing activities:

  • use of GDPR Personal Data to set up, operate, monitor and provide the Services (including operational and technical support)
  • provision of consulting services
  • communication to authorized users
  • storage of GDPR Personal Data in dedicated data centers
  • upload any fixes or upgrades to the Services
  • back up of GDPR Personal Data
  • computer processing of GDPR Personal Data, including data transmission, data retrieval, data access
  • network access to allow GDPR Personal Data transfer
  • execution of instructions of the Customer in accordance with the Agreement

SCHEDULE 2


technical and organisational measures

  1. Service Provider maintains internal policies and procedures, and procures that its Subprocessors also maintain internal policies and procedures, which are designed to:
  1. secure any Customer Personal Data Processed by Service Provider against accidental or unlawful loss, access, or disclosure;
  2. identify reasonably foreseeable and internal risks to security and unauthorized access to any Customer Personal Data Processed by Service Provider; and
  3. minimise security risks, including through risk assessment and regular testing.
  1. Service Provider will, and will also procure that its Subprocessors will, conduct periodic reviews to:
  1. evaluate the security of its network and associated services and the adequacy of its information security program, as measured against industry security standards, Service Provider’s policies and procedures, and all applicable information security requirements in the Agreement; and
  2. determine whether additional or different security measures are required (i) for Service Provider’s continued compliance with industry standards, its policies and procedures, and all applicable information security requirements in the Agreement, and (ii) to respond to new security risks or findings generated by the period reviews.  
  1. Without limiting the generality of the foregoing provisions of this Schedule 2, Service Provider will implement and maintain (for so long as Service Provider continues to Process any Customer Personal Data) all applicable information security requirements in the Agreement. In the event of a conflict between the provisions of the Information Security Requirements and a provision of this Data Processing Agreement, the provision that is more stringent will control.  




Schedule 3

Standard Contractual Clauses (processors)

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 Name of the data exporting organisation: Customer each on behalf of itself and their current and future respective affiliated offices established in a Member State and/or Switzerland, including without limitation, those listed on Appendix 3 attached.

Name of the data importing organisation: Service Provider.

each a “party”; together “the parties”,

HAVE AGREED, as of the date of the last signature, on the following Contractual Clauses (the 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.

  1. 2.

    Definitions

For the purposes of the Clauses:

  1. '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;
  2. 'the data exporter' means the controller who transfers the personal data;
  3. '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;
  4. '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;
  5. '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;
  6. '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.
  1. 3.

    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 which forms an integral part of the Clauses.

  1. 4.

    Third-party beneficiary clause
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  1. 5.

    Obligations of the data exporter

The data exporter agrees and warrants:

  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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;
  9. 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
  10. that it will ensure compliance with Clause 4(a) to (i).
  1. 6.

    Obligations of the data importer

The data importer agrees and warrants:

  1. 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;
  2. 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;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
  1. 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,
  2. any accidental or unauthorised access, and
  3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  1. 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;
  2. 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;
  3. 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;
  4. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  5. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  6. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
  1. 7.

    Liability
  1. 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.
  2. 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.

  1. 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.
  1. 8.

    Mediation and jurisdiction
  1. 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:
  1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  1. 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.
  1. 9.

    Cooperation with supervisory authorities
  1. 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.
  2. 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.
  3. 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).
  1. 10.

    Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Member State in which the applicable data exporter’s dependent office is located.

  1. 11.

    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.

  1. 12.

    Subprocessing
  1. 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.
  2. 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.
  3. 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, namely the Member State in which the applicable data exporter’s dependent office is located.
  4. 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.
  1. 13.

    Obligation after the termination of personal data processing services
  1. 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.
  2. 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

This Appendix forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):  

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

Categories of data

The personal data transferred concern the following categories of data (please specify):

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

See Schedule 1 to the Data Processing Addendum to which these Clauses are attached

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (“TOMs”) (or document/legislation attached):

See Schedule 2 to the Data Processing Addendum to which these Clauses are attached