DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) forms an integral part of and is subject to the End User License Agreement, available at: www.purposeprivacy.com/eula (“EULA”), entered into by and between you (hereinafter referred to as “Controller” or “You”) and Purpose Software, Inc. (hereinafter referred to as “Purpose” or “Processor”), including the Purpose Privacy Policy, available at: www.purposeprivacy.com/privacy-policy (“Privacy Policy”), and the Cookie Policy available at: www.purposeprivacy.com/cookie-policy (“Cookie Policy”, and together with the Privacy Policy and the EULA - the "Agreement"). Controller and Processor are hereinafter jointly referred to as the “Parties” and individually as the “Party”. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

 

BY AGREEING TO THE AGREEMENT, YOU ACKNOWLEDGE HAVING READ THIS DPA AND AGREE THAT PURPOSE MAY PROCESS ANY AND ALL PERSONAL DATA THAT YOU CHOOSE TO MAKE AVAILABLE TO OR THROUGH THE SERVICES OR THAT YOU OTHERWISE SHARE WITH PURPOSE IN CONNECTION WITH YOUR USE OF THE SERVICES, AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS DPA.

1. Definitions. In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth

    opposite each one of them:

 1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for

        purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;

 1.2. “Applicable Data Protection Laws” means, as applicable, (a) European Union Regulation 2016/679 (the “GDPR”), or (b) California Civil Code

        Section 1798.100-1798.199 (the “CCPA”), and any legislation and/or regulation implementing or made pursuant to the GDPR and the CCPA,

        or which amends or replaces any of them;

 1.3. “Commission”, “Data Controller”, “Data Subject”, “Member State”, “Personal Data Breach”, “Processing”, and “Supervisory Authority” shall be

        interpreted in accordance with the GDPR;

 1.4. “Personal Data” as used in this DPA, means any information that Controller chooses to provide to Purpose or shares with Purpose, that

        relates to, or could reasonably be linked with, an identifiable or identified Data Subject/Consumer.

 1.5. “Processor” in the scope of Purpose’s processing of Personal Data, as between the Parties, Purpose shall be deemed the Data

        Processor/Service Provider, and You shall be deemed the Data Controller (or its equivalent under the CCPA).  

 1.6. “Service Provider”, “Sell”, “Sub-Contractor” and “Consumer” shall be interpreted in accordance with the CCPA; Where applicable, references to

        Processor shall also refer to ‘Service Provider’, references to Sub-Processor shall refer to ‘Sub-Contractor’ and references to Data Subject

        shall also refer to ‘Consumer’. 

 1.7. “Standard Contractual Clauses” mean the annex to the EU Commission Decision of 5 February 2010 on standard contractual clauses for

        the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the

        Council as shall be amended from time to time;

 1.8. “Sub Processor" means any person (including any third party and any Processor Affiliate, but excluding an employee of Processor or any of

        its sub-contractors) appointed by or on behalf of Processor or any Processor Affiliate to Process Personal Data on behalf of the Controller in

        connection with the Principal Agreement; and

2. Processing of Personal Data.

 2.1. Processor shall not Process Personal Data other than on the Controller’s documented reasonable and customary instructions which are

        provided in accordance with the EULA or this DPA, and in accordance with Applicable Data Protection Laws unless otherwise is required of

        Processor under applicable law.  

 2.2. Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) to Process Personal Data all as reasonably

        necessary for the provision of the Services and consistent with the terms hereof and the Agreement, and in accordance with Applicable Data

        Protection Laws.

 2.3. CCPA. For any Personal Data subject to the CCPA, Purpose shall not: (i) Sell the Personal Data; (ii) retain, use, or disclose the Personal Data

        for any purpose other than for the specific purpose of performing the Services; (iii) retain, use, or disclose the Personal Data for a commercial

        purpose other than providing the Services; or (iv) retain, use, or disclose the information outside of the direct business relationship between

        Purpose and You. 

3. Subject Matter, Duration, Nature and Purpose of Processing, Data Subjects, and Types. 

 3.1. Controller sets forth below the details of the Processing of Personal Data, as required by article 28(3) of the GDPR:

  • Subject Matter and Duration: The subject matter of the processing is the performance of the Services to you pursuant to the Agreement. The duration of the processing is for the duration of the Agreement except where otherwise required by Applicable Data Protection Laws or other legal obligation, or for Processor to protect its rights or those of a third party.

  • Nature and Purpose of Processing: The nature and purpose of the Processing of Controller Personal Data is which may include, but is not limited to, rendering Services in the nature of Personal Data tagging and Personal Data mapping within Controllers’ servers, as further described in the Agreement.

  • The Categories of Data Subjects or Consumers: The categories of Data Subjects about whom Processor processes Personal Data are determined and controlled by you, in your sole discretion, which may include, but are not limited to, your employees, your end users and your Customers’ end users.

  • Types of Personal Data: The types of Personal Data are determined and controlled by you, in your sole discretion, which may include, but are not limited to, IP address, email address, username and password, billing and shipping address, phone number, and transaction information.

4. Controller Obligations. 

 4.1. Controller shall comply with all Applicable Data Protection Laws in connection with the performance of this DPA. As between the Parties,

        Controller shall be solely responsible for compliance with applicable laws (including the Applicable Data Protection Laws) regarding the

        collection of and transfer to Processor of Personal Data.

 4.2. Controller warrants and represents that it has obtained all permissions, consents, authorizations and approvals, including by making all

        notices, required for it to allow Processor to access and process Personal Data as permitted hereunder and for substantiating the lawful

        basis and legality of Processor’s Processing of Personal Data as permitted hereunder.  

5. Processor Personnel. Processor shall take reasonable steps to ensure that access to the Personal Data by Processor Personnel is limited on a need to know/access basis, and that all Processor personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Controller’s Personal Data; including undertaking appropriate training in relation to the Data Protection Laws, and subject to user authentication and log-on processes when accessing the Personal Data.

6. Security. Processor shall, in relation to the Personal Data, implement appropriate technical and organizational measures to ensure an appropriate level of security, including, as appropriate and applicable, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by Processing, in particular from a Personal Data Breach.

7. Sub Processing.

 7.1. Controller authorizes Processor and each Processor Affiliate to appoint (and permit each Sub Processor appointed in accordance with this

        Section ‎7 to appoint) Sub Processors in connection with the processing of Personal Data in accordance with this Section ‎7 and any

        restrictions in the Agreement.

 7.2. Processor and each Processor Affiliate may continue to use those Sub Processors already engaged by Processor or any Processor Affiliate

        as of the date of this DPA. A current list of Sub Processors is attached hereto as Annex 1.

 7.3. Controller may make a written request that Processor notify Controller of any new Sub Processors. If Controller makes such written request,

        Processor shall give prior notice of the appointment of any new Sub Processor (for instance by e-mail), including relevant details of the

        Processing to be undertaken by the new Sub Processor, to enable the Processor to reasonably evaluate the proposed appointment. If, within

        seven (7) days of such notice, Controller notifies Processor in writing of any objections (on reasonable grounds) to the proposed

        appointment, Processor shall not appoint for the processing of Personal Data the proposed Sub Processor until reasonable steps have been

        taken to address the objections raised by Controller, and Controller has been provided with a reasonable written explanation of the steps

        taken. Where such steps are not sufficient to relieve Controller’s reasonable objections, then Controller or Processor, may, by written notice to

        the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which require the use of the

        proposed Sub Processor without bearing liability for such termination.

 7.4. With respect to each new Sub Processor, Processor shall: (a) before the Sub Processor first Processes Personal Data, ensure that the Sub

        Processor is committed to provide the level of protection for Personal Data required by the Agreement; and (b) ensure that the arrangement

        between the Processor and the Sub Processor is governed by a written contract, including terms which offer comparable protections of

        Personal Data as those set out in this DPA and that meet the requirements of Applicable Data Protection Laws.

 7.5. Processor shall remain responsible for the actions and omissions of its Sub-Processors in breach of this DPA, as if performed by Processor. 

8. Data Subject Rights.

 8.1. Controller shall be solely responsible for responding to Data Subject requests to exercise their rights in accordance with Applicable Data

        Protection Laws (e.g., for access, rectification, deletion of Personal Data, etc.). Taking into account the nature of the Processing, Processor

        shall reasonably assist Controller insofar as feasible, to fulfil Controller's said obligations with respect to such Data Subject requests, as

        applicable.

 8.2. Processor shall: (a) promptly notify Controller if it receives a request from a Data Subject under any Applicable Data Protection Law in

        respect of Personal Data; and (b) ensure that it does not respond to that request except on the documented instructions of Controller or as

        required by applicable laws to which the Processor is subject, in which case Processor shall, to the extent permitted by applicable laws,

        inform Controller of that legal requirement before it responds to the request.

9. Personal Data Breach.

 9. 1. Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Personal Data.

        In such event, Processor shall provide Controller with information (to the extent in Processor’s possession) to assist Controller to meet any

        obligations to inform Data Subjects or Data Protection authorities of the Personal Data Breach under the Data Protection Laws. Processor

        shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the parties or necessary under

        Privacy Protection Laws to assist in the investigation, mitigation and remediation of each such Personal Data Breach, at Controller’s sole

        expense. 

10. Data Protection Impact Assessment and Prior Consultation.

 10.1. At the written request of the Controller, the Processor and each Processor Affiliate shall provide reasonable assistance to Controller, with

        any data protection impact assessments or prior consultations with Supervising Authorities or other competent data privacy authorities, as

        required under any applicable Data Protection Laws. 

11. Deletion or return of Personal Data.

 11.1. Subject to Section ‎10.2, Processor shall promptly and in any event within up to sixty (60) days of the date of cessation of any Services

        involving the Processing of Personal Data (the "Cessation Date"), delete or anonymize all copies of those Personal Data, except such copies

        as authorized including under this DPA or required to be retained in accordance with Applicable Data Protection Laws and/or regulation.

 11.2. Subject to the Agreement, Processor may retain Personal Data to the extent authorized or required by Applicable Data Protection Laws for

        the purpose of defending itself against Controller or Data Subject claims, provided that Processor shall ensure the confidentiality of all such

        Personal Data and shall ensure that it is only processed for such legal purpose(s). 

 11.3. Upon Controller’s prior written request, Processor shall provide written certification to Controller that it has complied with this Section ‎10.

12. Audit Rights

 12.1. Subject to Sections ‎11.2 and ‎11.3, Processor shall make available to a reputable auditor mandated by Controller in coordination with

        Processor, upon prior written request, such information held or accessible by Processor, necessary to reasonably demonstrate compliance

        with this DPA, and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the

        Processing of the Personal Data by the Processor, provided that such third-party auditor shall be subject to Processor’s standard

        confidentiality obligations. 

 12.2. In any event, all audits or inspections shall be subject to Processor's obligations to third parties, including with respect to confidentiality. 

 12.3. Controller shall give Processor reasonable prior written notice of any audit or inspection to be conducted under Section ‎11.1 and shall use

        (and ensure that each of its mandated auditors uses) its best efforts to avoid causing (or, if it cannot avoid, to minimize) any damage, injury

        or disruption to the Processors' premises, equipment, personnel and business in the course of such an audit or inspection. 

13. Cross-Border Data Transfer

 13.1. Cross-border transfers of Personal Data from a territory of a Member State of the European Union or a part of the EEA (the “EU”), to a

        territory outside the EU (“Restricted Transfers”), may be performed by Processor or Sub Processor solely under any of the following

        conditions:

        a. Under a binding contractual obligation to adhere to the Standard Contractual Clauses (the updated version of which may be found online)

            a copy of which is set out for convenience in Annex 2 hereto (“SCCs”) and under any additional safeguard reasonably required to ensure

            the protection of the transferred Personal Data to which the Data Subject is entitled within the EU.

        b. The transfer is to a country which the European Commission recognized as a country which ensures an adequate level of data protection. 

 13.2. In the event that EU authorities or courts determine that the Restricted Transfer mechanism selected above is no longer an appropriate

        basis for such Restricted Transfers, Controller and the Processor shall promptly take all steps reasonably necessary to demonstrate

        adequate protection for the Personal Data, using another approved mechanism. Processor understands and agrees that Controller may

        terminate the Restricted Transfers as needed to comply with the Data Protection Laws.

 13.3. Controller acknowledges and agrees that some of Processor's processing activities take place in the State of Israel, which was

        acknowledged by the EU Commission, in its January 31st 2011 decision, as a country providing adequate protection with respect to

        Personal Data; or in the USA and in such event Processor and Controller agree to be bound by the SCCs.

14. General Terms

 14.1. Governing Law and Jurisdiction. The Parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with

        respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the

        consequences of its nullity; and, This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by

        the laws of the country or territory stipulated for this purpose in the Agreement.

 14.2. Order of Precedence. Nothing in this DPA reduces Processor’s obligations under the Agreement in relation to the protection of Personal

        Data or permits Processor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the

        event of any conflict or inconsistency between this DPA and the Agreement, this DPA shall prevail solely with respect to the subject matter of

        this DPA and solely if such conflict or inconsistency originate from the requirements of Article 28 of the GDPR (except where explicitly agreed

        otherwise in writing, signed on behalf of the Parties). This DPA is not intended to, and does not in any way limit or derogate from Controller’s

        own obligations and liabilities towards the Processor under the Agreement, and/or pursuant to the GDPR or any law applicable to Controller,         in connection with the collection, handling and use of Personal Data by Controller or its Affiliates or other processors or their sub-processors,

        including with respect to the transfer or provision or Personal Data to Processor and/or providing access thereto to Processor.

 14.3. Changes in Data Protection Laws. Controller may by at least forty-five (45) calendar days' prior written notice to Processor, request in

        writing any variations to this DPA if they are required, as a result of any change in, or decision of a competent authority under any applicable

        Data Protection Law, to allow Processing of those Personal Data to be made (or continue to be made) without breach of that Data Protection

        Law; and, If Controller gives notice under Section 8.2, the Parties shall promptly discuss the proposed variations and negotiate in good faith

        with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Controller's

        notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days, then

        Controller or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates

        to the Services which are affected by the proposed variations (or lack thereof).

 14.4. Severance. Should any provision of this DPA be deemed invalid or unenforceable, then the remainder of this DPA shall remain valid and in

        force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving

        the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had

        never been contained therein.

Annex 1: Sub Processors

1. AWS (Amazon)

Annex 2: Standard Contractual Clauses

EC Standard Contractual Clauses for Data Processors established in countries outside of the European Economic Area


 

 

                                            EUROPEAN COMMISSION

                                            DIRECTORATE-GENERAL JUSTICE

                                            Directorate C: Fundamental rights and Union citizenship

                                            Unit C.3: Data protection

 

 

 

Commission Decision C(2010)593
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:    

Address:    

Tel.:    ; fax:    ; e-mail:    

Other information needed to identify the organisation:

……………………………………………………………
(the data exporter)

And

Name of the data importing organisation:    

Address:    

Tel.:    ; fax:    ; e-mail:    

Other information needed to identify the organisation:

…………………………………………………………………
(the data importer)

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

HAVE AGREED 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.

 

Clause 1

Definitions

For the purposes of the Clauses:

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

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

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

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

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

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

Clause 2

Details of the transfer

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

Clause 3

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. 

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants: 

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

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

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

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

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

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

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

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

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

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

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

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

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

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

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

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

(ii)    any accidental or unauthorised access, and

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

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

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

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

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

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

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

Clause 6

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.

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

Clause 7

Mediation and jurisdiction

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:

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

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

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

Clause 8

Cooperation with supervisory authorities

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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely………………………………………………………………………….

Clause 10

Variation of the contract

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

Clause 11

Subprocessing

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 …………………………………… …………………………………………………………………………………………………………………………………………………………………………

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. 

Clause 12

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.







 

On behalf of the data exporter:

Name (written out in full):    

Position:    

Address:    

Other information necessary in order for the contract to be binding (if any):    

Signature……………………………………….

    (stamp of organisation)




 

On behalf of the data importer:

Name (written out in full):    

Position:    

Address:    

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

                        (stamp of organisation)

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):

………………………………………………………………………………………………………………………………………………………………………………………………

Data importer

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

………………………………………………………………………………………………………………………………………………………………………………………………

Data subjects

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

………………………………………………………………………………………………………………………………………………………………………………………………

Categories of data

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

………………………………………………………………………………………………………………………………………………………………………………………………

Special categories of data (if appropriate)

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

………………………………………………………………………………………………………………………………………………………………………………………………

Processing operations

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

………………………………………………………………………………………………………………………………………………………………………………………………

DATA EXPORTER

Name:………………………………    

Authorised Signature ……………………

DATA IMPORTER

Name:………………………………    

Authorised Signature ……………………

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) (or document/legislation attached):

…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

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