This Data Processing Addendum(DPA)

  1. Preamble. This Data Processing Addendum (“DPA”), forms part of the Master Subscription and Consulting Services Agreement (the “Agreement”) between Measured, Inc. (“Measured”) and the entity that has engaged Measured to provide the Services (“Customer”). Each of Measured and Customer is referred to in this DPA individually as a "party", collectively the "parties". Capitalized terms used and not otherwise defined in this DPA shall have the meanings ascribed to them in the Agreement.
  2. Subject Matter, Nature, Purpose and Duration. Sections 2 through 6 of this DPA apply to the processing of personal data relating to data subjects located in the European Economic Area or the United Kingdom, or to the extent such personal data is otherwise regulated by the GDPR, by Measured solely on behalf of Customer for the purpose of providing the Services (“EU Personal Data”). For the avoidance of doubt, EU Personal Data does not include Derivative Data, Usage Data, or Non-identifiable Data. As between the parties, (i) Customer is a controller and Measured is a processor on behalf of Customer with regard to EU Personal Data or (ii) Customer is a processor on behalf of a third party with respect to EU Personal Data and Measured is a processor on behalf of Customer with regard to EU Personal Data. The subject matter and purposes of EU Personal Data processing, the types of EU Personal Data, categories of data subjects, the nature of the EU Personal Data processing operations carried out by Measured on behalf of Customer, and Customer’s EU Personal Data processing instructions for Measured, are set forth on Exhibit A to this DPA and as otherwise as provided in reasonable written instructions by Customer to Measured from time to time. This DPA shall remain in effect, and the duration of the processing under this DPA shall continue, as long as Measured carries out EU Personal Data processing operations on behalf of Customer or until the termination of the Agreement (and in each case until all EU Personal Data has been returned or deleted in accordance with Section 3(g)). In Sections 2 through 6 of this DPA, the following terms have the meanings given in the General Data Protection Regulation (EU) 2016/679 (“GDPR”): “controller”, “personal data”, “processor”, “data subject” and “processing”.
  3. Processing Covenants. In processing EU Personal Data hereunder, Measured shall:
    1. process EU Personal Data only on documented instructions from Customer, unless otherwise required to do so by applicable law, in which case Measured will inform Customer of that legal requirement before undertaking such processing, unless applicable law prohibits Measured from so informing Customer. For the avoidance of doubt, this DPA shall constitute Customer’s documented instructions to Measured to process EU Personal Data in connection with Measured’s provision of the Services to Customer;
    2. use commercially reasonable efforts intended to ensure that persons authorized by Measured to process EU Personal Data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality or are subject to ethical rules of responsibility that include confidentiality;
    3. 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, implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR;
    4. taking into account the nature of the processing, use commercially reasonable efforts to assist Customer, at Customer’s expense, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR and any applicable national implementing legislation, regulations and secondary legislation relating to the processing of EU Personal Data (the “Data Protection Laws”);
    5. taking into account the nature of processing and the information available to Measured, use commercially reasonable efforts to assist Customer, at Customer’s expense, in ensuring compliance with Customer’s obligations described in Articles 32 through 36 of the GDPR;
    6. notify Customer promptly if Measured becomes actually aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, EU Personal Data (an “Incident”), provided that the provision of such notice by Measured shall not be construed as an acknowledgement of fault or liability with respect to any such Incident;
    7. at the choice of Customer, delete or return all EU Personal Data to Customer within ninety (90) days of Measured's receipt of Customer's written request after the end of the provision of the Services to Customer and delete existing copies unless applicable law requires retention of EU Personal Data; and
    8. to the extent required by the GDPR or the SCCs, make available upon Customer’s reasonable request information reasonably necessary to demonstrate material compliance with the obligations laid down in this DPA to the extent such obligations are required by Article 28 of the GDPR or the SCCs (the “Obligations”). A third party independent audit shall be considered information reasonably necessary to demonstrate compliance with the Obligations. Only if such information is not sufficient to demonstrate compliance with the Obligations, Measured shall complete a reasonable privacy and security questionnaire, to be provided by Customer. If additional questions remain following completion of the questionnaire, a phone call and/or series of phone interviews with relevant individuals may be performed. The foregoing shall satisfy Measured’s audit requirement under the GDPR and the SCCs, unless the relevant Supervisory Authority requires a separate audit or Customer reasonably determines that an audit remains necessary under the GDPR or the SCCs to demonstrate material compliance with the Obligations, provided that no audit shall be undertaken unless or until Customer has requested, and Measured has provided, documentation (which documentation may include Measured's then current SSAE SOC2 report (if any)), questionnaires, and interviews pursuant to this Section 3(h). Any audit shall be performed at Customer’s expense, including inspections of processing facilities under Measured’s control, conducted by Customer or another independent third party auditor chosen by Customer (an “Auditor”), during normal business hours, no more frequently than once during any twelve (12) month period, and upon reasonable prior notice, provided that no Auditor shall be a competitor of Measured, nor shall any Auditor be compensated on a contingency basis, and provided further that in no event shall Customer have access to the information of any other client of Measured and the disclosures made pursuant to this Section 3(h) (“Audit Information”) shall be held in confidence as Measured’s confidential information and subject to any confidentiality obligations in the Agreement (including Section 7 of the Agreement). Without limiting the generality of any provision in the Agreement, Customer shall employ the same degree of care to safeguard Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the circumstances, and Customer shall be liable for any improper disclosure or use of Audit Information by Customer or its agents.
  4. Subprocessors. Customer hereby grants Measured general authorization to engage another processor to process EU Personal Data on behalf of Measured (each a “subprocessor”) to assist Measured in processing EU Personal Data as set out in this DPA. Measured shall enter into contractual arrangements with such subprocessors requiring a substantially similar level of data protection compliance and information security as that provided for herein. Customer hereby consents to the processing of EU Personal Data by, and the disclosure and transfer of EU Personal Data to, the subprocessors listed on Exhibit B to this DPA. Customer may register to receive email notifications regarding subprocessor modifications here [link]. Provided that Customer is registered to receive such notifications, Measured shall inform Customer via email of any intended changes concerning the addition or replacement of subprocessors at least ten (10) calendar days before the new subprocessor processes EU Personal Data. Customer may object to such changes in writing within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection (an “Objection”). In the event of an Objection, the parties will discuss such concerns in good faith with the intention of achieving a resolution. If the parties are not able to achieve a resolution as described in the previous sentence, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience, on the condition that Customer provides written notice to Measured within five (5) calendar days of being informed of the engagement of the subprocessor. Customer shall not be entitled to any refund of fees paid prior to the date of any termination pursuant to this Section 4 and shall remain responsible and liable to Measured for any previously committed fees, which Customer shall pay to Measured within thirty (30) days of Customer's receipt of Measured's invoice therefor.
  5. Customer Obligations. Customer represents, warrants, and covenants that (i) it shall comply with its obligations as a controller under the GDPR in respect of its processing of EU Personal Data and any processing instructions it issues to Measured as referred to in Section 3(a); (ii) it has provided notice and obtained all consents and rights required by the Data Protection Laws to transfer the EU Personal Data outside the European Economic Area or United Kingdom and for Measured to process EU Personal Data pursuant to the Agreement and this DPA; (iii) the processing of EU Personal Data by Measured upon the documented instructions of Customer under Section 3(a) shall have a lawful basis of processing pursuant to Article 6 of the GDPR; and (iv) Measured’s processing of the EU Personal Data in accordance with the Agreement and this DPA, and Customer's directions to Measured under the Agreement and this DPA, do not and will not infringe upon or violate any applicable law or any rights of any third party. If Customer is a processor, Customer represents and warrants to Measured that Customer’s instructions and actions with respect to EU Personal Data, including its appointment of Measured as another processor, have been duly authorized by the relevant controller. Customer shall indemnify, defend and hold Measured harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Customer’s violation of this Section 5.
  6. Data Transfer. Customer hereby consents to the transfer of EU Personal Data to, and the processing of EU Personal Data in, the United States of America, India, Argentina, Canada and/or in any other jurisdiction in which Measured or its subprocessors have operations. The parties hereby enter into the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2010/87/EU, attached hereto as Exhibit C (the “SCCs”) and made a part of this DPA in their entirety.
  7. Other Personal Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Measured shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as product development and sales and marketing. To the extent any such data is considered personal data (as defined in, and regulated by the GDPR (as defined in Section 2)), Measured is the controller (as defined in the GDPR) of such data and accordingly shall process (as defined in the GDPR) such data in accordance with the GDPR. To the extent any such data is considered personal information (as defined in, and regulated by, the CCPA (as defined in Section 8)), then, to the extent Measured is subject to the CCPA as a business (as defined in the CCPA), Measured is the business (as defined in the CCPA) with respect to such data and accordingly shall process (as defined in the CCPA) such data in accordance with the CCPA.
  8. CCPA Provisions. As between the parties, Measured is a service provider to Customer with respect to Service Provider Information (as defined below).
    1. In this Section 8:
      1. CCPA” means the California Consumer Privacy Act of 2018, together with any regulations promulgated thereunder.
      2. Service Provider Information” means any personal information to the extent regulated by the CCPA that is processed by Measured solely on behalf of the Customer for the purpose of providing the Services. For the avoidance of doubt, Service Provider Information does not include Derivative Data, Usage Data, or Non-identifiable Data.
      3. Medical Information” means any Service Provider Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.
      4. Health Insurance Information” means a California resident's insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the California resident, or any information in a California resident's application and claims history, including any appeals records.
      5. Sensitive Service Provider Information” means any Service Provider Information that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific California resident; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; (V) Health Insurance Information; or (VI) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific California resident (except that unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes); or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive Service Provider Information does not include publicly available Service Provider Information that is lawfully made available to the general public from federal, state, or local government records.
      6. The following terms have the meanings given in the CCPA: "business purpose", “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”.
    2. Except as otherwise required by applicable law, Measured shall:
      1. process the Service Provider Information for the business purpose of providing the Services or as otherwise permitted by the CCPA;
      2. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive Service Provider Information (if any) intended to protect such Sensitive Service Provider Information from unauthorized access, destruction, use, modification, or disclosure;
      3. iii.not retain, use or disclose Service Provider Information for any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of providing the Services, nor retain, use, or disclose the Service Provider Information for a commercial purpose other than providing the Services, or as otherwise permitted by the CCPA as applicable to service providers;
      4. iv.not collect or use Service Provider Information except as reasonably necessary to provide the Services;
      5. v.not sell Service Provider Information;
      6. vi.to the extent necessary, use commercially reasonable efforts to assist Customer, at Customer’s expense, in Customer’s fulfilment of Customer’s obligation to respond to California residents’ requests to exercise rights with respect to their Service Provider Information under the CCPA; and
      7. vii.use commercially reasonable efforts to assist Customer, at Customer’s expense, to the extent necessary to support Customer’s compliance with Customer’s obligations under the CCPA.
    3. Measured understands the restrictions provided in Sections 8(b)(iii) and 8(b)(v) and will comply with them.
    4. Customer represents, warrants and covenants that (i) it shall comply with its obligations under the CCPA in respect of its processing of Service Provider Information and any processing instructions it issues to Measured; (ii) it has provided notice (including without limitation pursuant to Section 1798.135 of the CCPA) and obtained all consents and rights required by the CCPA for Measured to process Service Provider Information pursuant to the Agreement and this DPA; and (iii) Measured's processing of the Service Provider Information in accordance with the Agreement and this DPA, and Customer’s directions to Measured under this Agreement and this DPA, do not and will not infringe upon or violate any applicable law or any rights of any third party. Customer shall indemnify, defend and hold Measured harmless from and against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Customer’s violation of this Section 8(d).
    5. Nothing in this DPA shall prevent Measured from engaging its own service providers in the processing of Service Provider Information, provided that Measured shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 8 with respect to Service Provider Information.
Exhibit A
Subject Matter, Nature, and Purpose of the Processing
  1. Type of EU Personal Data:
    Visitors to websites, mobile or tablet sites or applications, and/or other similar properties or services owned or controlled by Customer: Internet Protocol address.
    Depending on the specific Services provided by Measured to Customer under the Agreement, Measured may also have access to the following EU Personal Data relating to visitors to websites, mobile or tablet sites or applications, and/or other similar properties or services owned or controlled by Customer, as well as customers of Customer: order ID, order information (including item SKU), email address, conversion and transaction information, whether an individual received a catalog, telephone number, name, address, date of birth, customer or user ID, place ID, city, state, country, gender, zip code, region/DMA, and Census Block Group (CBG).
    Representatives of Customer: Username and password for third-party platforms with which the Services integrate.
  2. Categories of Data Subject:
    Visitors to websites, mobile or tablet sites or applications, and/or other similar properties or services owned or controlled by Customer, as well as customers of Customer.
    Representatives of Customer.
  3. Subject Matter and Purposes for which EU Personal Data is Processed:
    Measured’s provision of the Services to Customer in accordance with the Agreement.
  4. Nature of the Processing:
    The EU Personal Data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing the Services by Measured to Customer in accordance with the terms of the Agreement.
Exhibit B
Subprocessors

Amazon Web Services

Tableau Software, LLC

Farsighted Systems Private Limited d/b/a Tech Prescient

KnoWhere, LLC

Pace Wisdom Solutions Pvt Ltd

Measured from time to time employs third-party consultants, who act as subprocessors in connection with providing services to Measured.

Exhibit C
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

Customer (the ‘data exporter’)

And

Measured (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:
  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 [ Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.];
  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 sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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.
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. 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 sub-processor 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 sub- processor 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
  1. (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;
  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. Obligations of the data exporter
  7. The data exporter agrees and warrants:
    1. 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;
    2. to forward any notification received from the data importer or any sub-processor 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;
    3. 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 sub-processing 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;
    4. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor 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
    5. that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer 2

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:
    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;
    any accidental or unauthorised access; and
    any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. 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;
  6. 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;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, 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;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor 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.
  3. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

  4. 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor 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:
    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.
  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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9
Governing law

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

Clause 10
Variation of the contract

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

Clause 11
Sub-processing
  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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses[ This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.]. Where the sub-processor 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 sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

    The data importer and the sub-processor 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. By signing the signature page to this DPA, the parties will be deemed to have signed this Appendix 1.

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): Service recipient of data importer

Data importer

The data importer is (please specify briefly activities relevant to the transfer): Service provider for data exporter

Data subjects

The personal data transferred concern the following categories of data subjects (please specify): Section 2 of Exhibit A to this DPA is incorporated herein by reference.

Categories of data

The personal data transferred concern the following categories of data (please specify): Section 1 of Exhibit A to this DPA is incorporated herein by reference.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify): None presently contemplated by this arrangement.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify): Section 4 of Exhibit A to this DPA is incorporated herein by reference.

Appendix 2
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties. By signing the signature page to this DPA, the parties will be deemed to have signed this Appendix 2.

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):
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 data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the ris