"Affiliate" means any entity that owns or controls, or is owned or controlled by or is under common control or ownership with Customer or KickoffLabs, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.
"Customer Data" means any Personal Data that KickoffLabs processes on behalf of Customer as a Data Processor in the course of providing Services, as described in this DPA.
"Data Protection Laws" means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to KickoffLabs or Customer, relating to data security, data protection and/or privacy, including 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 processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
"Data Controller" means an entity that determines the purposes and means of the processing of Personal Data.
"Data Processor" means an entity that processes Personal Data on behalf of a Data Controller.
"EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data ("Directive") and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR"); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
"EEA" means, for the purposes of this DPA, the European Economic Area, United Kingdom (provided the United Kingdom adopts the EU Data Protection Law following the country’s withdrawal from the EU) and Switzerland.
"Personal Data" means any information relating to an identified or identifiable natural person (“Data Subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by referencing an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
"Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
"Privacy Shield Principles" means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
"Processing" means any operation or set of operations that is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Process” and “Processed” will have a corresponding meaning.
"Restricted Transfer" means (i) a transfer of Customer Data from Customer to KickoffLabs or a Sub-processor; or (ii) an onward transfer of Customer Data from KickoffLabs or a Sub-processor to another Sub-processor. In either case, where such transfer would be prohibited by the EU Data Protection Law in the absence of the Standard Contractual Clauses, to be established under Section 8 below.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
"Services" means any product or service provided by KickoffLabs to Customer pursuant to the Terms of Service.
"Standard Contractual Clauses" means the contractual clauses set out in Annex D and as amended under this DPA.
"Sub-processor" means any Data Processor engaged by KickoffLabs to assist in fulfilling its obligations with respect to providing the Services pursuant to the Terms or this DPA. Sub-processors may include third parties.
"Terms of Service" or “Terms” means KickoffLabs’s Terms of Service, available at https://kickofflabs.com/legal/terms-of-service, which governs the provision of the Services to Customer, as may be updated by KickoffLabs from time to time with or without notice.
2.1Except for the changes made by this DPA, the Terms of Service among the parties remains unchanged and in full force and effect. If there is any conflict between this DPA and the Terms of Service, this DPA shall prevail to the extent of that conflict.
2.2 Any claims brought under or in connection with this DPA shall be subject to the Terms of Service, including but not limited to, the exclusions and limitations set forth in the Terms of Service.
2.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by KickoffLabs in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable EU Data Protection Law shall reduce KickoffLabs’s liability under the Terms of Service as if it were liability to the Customer under the Terms of Service.
2.4 When applicable, without prejudice to Clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses, or where required under the EU Data Protection Law, the parties submit to the choice of jurisdiction stipulated in the Terms of Service with respect to any disputes or claims arising under this DPA, which is governed by the laws of the country similarly so stipulated in the Terms of Service.
2.4 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
This DPA applies where and only to the extent that KickoffLabs processes Customer Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Terms of Service.
General Data Protection Obligations
4.1 Role of the Parties. As between KickoffLabs and Customer, Customer is the Data Controller of Customer Data, and KickoffLabs shall process Customer Data only as a Data Processor acting on behalf of Customer.
4.2 Customer Processing of Customer Data. Customer agrees and acknowledges that (i) it shall comply with its obligations as a Data Controller under the EU Data Protection Law in respect of its processing of Customer Data and any processing instructions it issues to KickoffLabs; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under the EU Data Protection Law for KickoffLabs to process Customer Data and provide the Services pursuant to the Terms of Service and this DPA.
4.3 KickoffLabs Processing of Customer Data. KickoffLabs shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer’s documented instructions. The parties agree that this DPA and the Terms of Service among the parties set out the Customer’s complete and final instructions to KickoffLabs in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and KickoffLabs.
5.1 Authorized Sub-processors. Customer agrees that KickoffLabs may engage Sub-processors to process Customer Data on Customer's behalf. The Sub-processors currently engaged by KickoffLabs and authorized by Customer are listed on Annex C.
5.2 Sub-processor Obligations. KickoffLabs shall: (i) enter into a written agreement with each Sub-processor imposing data protection terms that require the Sub-processor protect the Customer Data to the standard required by EU Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause KickoffLabs to breach any of its obligations under this DPA.
6.1 Security Measures. KickoffLabs shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with KickoffLabs's security standards found in Annex B, which include: (a) pseudonymization or encryption of Customer Data; (b) restoring the availability and access to Customer Data in a timely manner in the event of a Security Incident, when possible; and (c) evaluating the effectiveness of technical and organizational Security Measures.
6.2 Updates to Security Measures. Customer is responsible for reviewing the information made available by KickoffLabs relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under EU Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that KickoffLabs may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
6.3 Customer Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
7.1 Customer acknowledges that KickoffLabs may be audited by independent third party and internal auditors. Upon request, KickoffLabs shall supply (on a confidential basis) a summary copy of its audit report(s) ("Report") to Customer, so that Customer can verify KickoffLabs's compliance with the audit standards against which it has been assessed, and this DPA.
7.2 KickoffLabs shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm KickoffLabs's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
8.1 Data center locations. KickoffLabs may transfer and process Customer Data anywhere in the world where KickoffLabs, or its Sub-processors maintain data processing operations. KickoffLabs shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
8.2 Privacy Shield. To the extent that KickoffLabs processes any Customer Data protected by EU Data Protection Law under the Terms of Service and/or that originates from the EEA, in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that KickoffLabs shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Customer Data by virtue of having self-certified its compliance with Privacy Shield. KickoffLabs agrees to protect such Personal Data in accordance with the requirements of the Privacy Shield Principles. If KickoffLabs is unable to comply with this requirement, KickoffLabs shall inform Customer.
8.3 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that KickoffLabs adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).
8.4 Subjectto 8.6, Customer (as “data exporter”) and KickoffLabs, including any Sub-processor thereof, (as “data importer”) hereby enter into the Standard Contractual Clauses with respect to any Restricted Transfer from Customer to KickoffLabs or any Sub-processor.
8.5 The Standard Contractual Clauses shall come into effect under Section 8.4 on the later of: (a) the data exporter becoming a party to them; (b) the data importer becoming a party to them; and (c) the commencement of the relevant Restricted Transfer.
8.6 Section 8.4 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Laws.
9.1 Confidentiality of Processing. KickoffLabs shall ensure that any person who is authorized by KickoffLabs to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality.
9.2 Security Incident Response. Upon becoming aware of a Security Incident, KickoffLabs shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
10.1 KickoffLabs shall (a) provide an up-to-date list of the Sub-processors it has appointed as listed under Annex C hereto; and (b) notify Customer (for which email shall suffice) if it adds or removes Sub-processors at least 10 days prior to any such changes.
10.2 Customer may object in writing to KickoffLabs’s appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If no resolution is achieved, Customer may suspend or terminate Service to Customer by the Terms of Service (without prejudice to any fees incurred by Customer prior to suspension or termination).
Upon termination or expiration of the Terms of Service, KickoffLabs shall (at Customer's election) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent KickoffLabs is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data KickoffLabs shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12.1 The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Customer Data within the Services, KickoffLabs shall (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Terms of Service. In the event that any such request is made directly to KickoffLabs, KickoffLabs shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If KickoffLabs is required to respond to such a request, KickoffLabs shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
12.2 If a law enforcement agency sends KickoffLabs a demand for Customer Data (for example, through a subpoena or court order), KickoffLabs shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, KickoffLabs may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then KickoffLabs shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless KickoffLabs is legally prohibited from doing so.
12.3 To the extent KickoffLabs is required under EU Data Protection Law, KickoffLabs shall (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
13.1 With at least 30 calendar days’ written notice to KickOffLab and as applicable under this DPA, Customer may modify the Standard Contractual Clauses as they apply to Restricted Transfers subject to EU Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that EU Data Protection Law, to allow those Restricted Transfers to be made without breach of that EU Data Protection Law and to propose other modification to this DPA which Customer reasonably considers necessary to address the requirements of any EU Data Protection Law.
13.2 Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by KickoffLabs to protect KickoffLabs or any Sub-processor thereof against additional risks associated with variations made under this Section 13.
14.1 The relationship of between the Agreements by order of priority in which terms shall prevail is first, the SCCs, then this DPA, and finally the Terms of Service.
14.2 Only the parties to this DPA (including its successors and assigns) shall have the right to enforce this agreement.
14.3 This DPA shall remain in effect for so long as KickoffLabs is processing on behalf of Customer or until termination in accordance with the Terms of Service and this DPA.
14.4 This DPA shall be governed by and construed in accordance with the Terms of Service, unless otherwise required by the Data Protection Laws.
Annex A – Details of Processing
Annex B – Security Measures
Security measures can be found here. https://kickofflabs.com/legal/security-measures/
Annex C – Sub-processors
A list of sub-processors can be found here: https://kickofflabs.com/legal/sub-processors/
Customer (the “data exporter”) has entered into a data processing addendum (“DPA”) with KickoffLabs LLC (the “data importer”). Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection under data exporter’s applicable data protection law. To ensure compliance with Directive 95/46/EC and applicable data protection law, the data exporter agrees to the provision of such Services (as defined in Appendix 1 hereto), including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these “Clauses.”
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; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of "personal data" is expanded to include those data” are added.]
(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; [If these Clauses are not governed by the law of a Member State, the words "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" are deleted.]
(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.
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.
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.
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; [If these Clauses are not governed by the law of a Member State, the words "within the meaning of Directive 95/46/EC" are deleted.]
(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).
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.
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.
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.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.
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.
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 ClausesDetails of the Transfer
Details can be found on Annex A to the DPA.
Appendix 2 – To the Standard Contractual Clauses Security Measures
Security Measures can be found on Annex B to the DPA.
Appendix 3 – To the Standard Contractual Clauses Variations to the Terms
Pursuant to Clause 10 of the Clauses, the following variations are hereby adopted by the parties, to the extent not in contradiction with the Clauses, and compliance with these variations shall be deemed compliance with the Clauses.
Clause 5(a) and Clause 5(b)