This Data Processing Addendum (this “DPA”) is incorporated into, and is subject to the terms and conditions of, the Fig Learning Terms and Conditions (the “Agreement”) between the customer entity that is a party to the Agreement (the “Client”) and Fig Learning Inc (the “Company”) and reflects the parties’ agreement with regard to the Processing of Client Data (as defined below). In the course of providing the Services to the Client pursuant to the Agreement, the Company may Process Client Data on behalf of the Client and the parties agree to comply with the following provisions with respect to any Client Data.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity, where “control” means, for the purposes of this definition, an ownership, voting, or similar interest representing fifty percent (50.0%) or more of the total interests then outstanding of the entity in question.
“Client Data” means any Personal Data that the Company Processes on behalf of the Client via the Services, as more particularly described in this DPA.
“Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to Client Data. Data Breach shall not include unsuccessful attempts or activities that do not compromise the security of Client Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“Data Controller” means the natural or legal person, public authority, agency, or any other body which alone or jointly with others determines the purposes and means of the Processing of Personal Data.
“Data Processor” means any natural or legal person, public authority, agency, or any other body which Processes Personal Data on behalf of a Data Controller or on the instruction of another Data Processor acting on behalf of a Data Controller.
“Data Protection Laws” means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions, including, where applicable, EU Data Protection Laws and Non-EU Data Protection Laws.
“Data Subject” means an identified or identifiable natural person whom Personal Data relates.
“EU Data Protection Laws” means all data protection laws and regulations applicable to Europe, including (i)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) (the “GDPR”);(ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); and (iv) in respect of the UnitedKingdom (the “UK”) any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the UK leaving the European Union.
“Europe” means, for the purposes of this DPA, the European Union, the European Economic Area and/or their member states, Switzerland, and/or the United Kingdom.
“Non-EU Data Protection Laws” means the California Consumer Privacy Act (the “CCPA”) and all other data protection laws and regulations not applicable to Europe, as they may be enacted, from time to time.
“Personal Data” means any information relating to an identified or identifiable living individual, including information that can be linked, directly or indirectly, with a particular DataSubject and is protected as “personal data”, “personal information”, or“personally identifiable information”, under Data Protection Laws.
“Process”, “Processing” or “Processed”means any operation or set of operations which is performed upon Client Data whether or not by automated means, according to the definitions given to such terms in the GDPR.
“Sensitive Data” means any Personal Data that requires a heightened degree of protection by applicable law, including but not limited to, (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) financial information or credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation; (e) trade union membership; or (f) information about a person’s sexual life or sexual orientation.
“Services” means all services provided by the Company in accordance with, and as defined in, the Agreement.
“Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data to DataProcessors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (Commission Decision 2010/87/EU of 5February 2010) as set out in Annex B to this DPA.
“Sub-processor” means any sub-contractor engaged in the Processing of Client Data in connection with theServices.
“Supervisory Authority” means any regulatory, supervisory, governmental, or other competent authority with jurisdiction or oversight over compliance with the Data Protection Laws.
2.1 Subject to the terms of theAgreement, the Client is the Data Controller of Client Data or has been instructed by and obtained the authorization of the relevant Data Controller(s) to enter into this DPA in the name and on behalf of such Data Controller(s). The Client is responsible for obtaining all of the necessary authorizations and approvals to enter, use, provide, store, andProcess Client Data to enable the Company to provide the Services. The Client, as the Data Controller, hereby appoints the Company as the Data Processor in respect of allProcessing operations required to be carried out by theCompany on Client Data in order to provide the Services in accordance with the terms of the Agreement.
2.2 TheCompany shall Process Client Data only in accordance with the Client’s documented lawful instructions as set forth in the Agreement and in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing. The parties agree that the Agreement sets out the Client’s complete and final instructions to the Company in relation to the Processing of ClientData, and Processing outside the scope of these instructions (if any) shall require prior written agreement between the parties.
2.3 TheClient will not provide (or cause to be provided) any Sensitive Data to the Company for Processing under the Agreement, and the Company will have no liability whatsoever forSensitive Data, whether in connection with a Data Breach or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.
2.4 TheClient represents and warrants that (a) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its Processing of Client Data and any Processing instructions it issues to the Company; and (b) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for the Company to Process Client Data for the purposes described in the Agreement. The Client shall have sole responsibility for the accuracy, quality, and legality of Client Data and the means by which Client acquired the Client Data.
2.5 TheClient will ensure that the Company’Processing of Client Data in accordance with the Client’s instructions will not cause the Company to violate any applicable law, regulation, or rule, including, without limitation, Data ProtectionLaws. The Company shall immediately notify the Client, where in its opinion an instruction of the Client infringes any Data Protection Laws and request the Client to withdraw, amend, or confirm the relevant instruction. Pending the decision on the withdrawal, amendment, or confirmation of the relevant instruction, the Company shall be entitled to suspend the implementation of the relevant instruction.
2.6 The subject matter, nature, purpose, and duration of the Processing of Client Data, as well as the types of Personal Data collected and categories of DataSubjects, are described in Exhibit A to this DPA.
2.7 The Company shall maintain complete, accurate, and up to date written records of all Processing activities carried out on behalf of the Client containing information as required under any applicable Data Protection Laws.
2.8 The Company acknowledges that it has no right, title, or interest in the Client Data and may not sell, rent, or lease the Client Data to anyone.
3.1 The Company currently utilizes the Sub-processors set forth here: [Fig Learning Sub-processors]. The Company shall notify the Client (email is sufficient) if it adds or removes Sub-processors prior to any such changes. The Client may object in writing to the Company’s appointment of a new Sub-processor within thirty (30)calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such an event, the parties shall discuss such concerns in good faith with a view to achieving resolution.If this is not possible, the Client may suspend or terminate the Agreement.
3.2 The Company will (a) enter into contractual arrangements with such Sub-processors binding them to provide the same level of data protection and information security to that provided for in this DPA and (b) be liable for the acts and omissions of its Sub-processors to the same extent Processor would be liable if performing the Services of each Sub-processor directly under the terms of theAgreement.
The Company shall ensure that its personnel engaged in the Processing of Client Data are informed of the confidential nature of Client Data, have received appropriate training on their responsibilities, and have executed written confidentiality agreements committing themselves to confidentiality.The Company shall ensure that the Company’s access to Client Data is limited to those personnel performing Services in accordance with the Agreement.
5.1 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 Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
5.2 The Company maintains internal policies and procedures, or procures that its Sub-processors do so, which are designed to:
(a) Secure any Client Data Processed by the Company against Data Breaches;
(b) Identify reasonably foreseeable and internal risks to security and unauthorized access to the Client Data Processed by the Company;
(c) Minimize security risks, including through risk assessment and regular testing.
5.3 TheCompany will, and will use reasonable efforts to procure that itsSub-processors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.
5.4 TheCompany will, and will use reasonable efforts to procure that itsSub-processors periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
5.5 Not withstanding the above, the Client agrees that except as provided by this DPA, the Client is responsible for its secure use of the Services, including securing its account authentication credentials (if and as applicable), protecting the security ofClient Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Client Data uploaded to the Company in connection with the Services.
6.1 If theCompany becomes aware of a Data Breach, the Company shall, without undue delay, (a) notify the Client of the Data Breach; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Data Breach.
6.2 In the event of a Data Breach, the Company shall provide Client with all reasonable assistance in dealing with the Data Breach, in particular in relation to making any notification to a Supervisory Authority or any communication to Data Subjects. In order to provide such assistance, and taking into account the nature of the Services and the information available to the Company, the notification of the Data Breach shall include, at a minimum, the following: (a) a description of the nature of the Data Breach including the categories and approximate number of data records concerned; (b) the likely consequences of the Data Breach; and (c) the measures taken or to be taken by the Company to address the Data Breach, including measures to mitigate any possible adverse consequences. Where, and insofar as, it is not possible for the Company to provide such information at the time of the notice, then such notice shall nevertheless be made, in as complete a form as possible, and the remaining required information may be provided by the Company, in phases and as it shall become available, without undue delay.
7.1 Upon termination or expiration of the Agreement, the Company will, at the choice and written request of the Client, return to Client and/or securely destroy all Client Data in its possession or control in accordance with the Agreement, save that this requirement shall not apply to the extent the Company is required by applicable law to retain some or all of the Client Data, or to Client Data it has archived on back-up systems, which data the Company shall securely isolate and protect from any further Processing and delete in accordance with its deletion practices.
7.2 During the term of the Agreement, the Company will make available to the Client, Client Data in a manner consistent with the functionality of the Services and in accordance with the terms of the Agreement. To the extent the Client, in its use and administration of the Services during the term of the Agreement, does not have the ability to amend or delete Client Data (as required by DataProtection Laws), or migrate Client Data to another system or service provider, the Company will, at theClient’s reasonable expense, comply with any reasonable requests from the Client to assist in facilitating such actions to the extent the Company is legally permitted todo so and has reasonable access to the relevant Client Data.
8.1 At the Client’s written request, the Company will, not more than once annually, allow an audit to verify the Company’s compliance with obligations under Data Protection Laws and this DPA, to be carried out either (a) by an independent third party audit firm bound by a duty of confidentiality selected by the Client and approved by the Company (which approval will not unreasonably be withheld or delayed) or (b) by a Supervisory Authority. The parties will agree on the scope of the audit prior to the audit being carried out. If the Client requests that the Company incur out-of-pocket costs to assist the Client in the audit, then the Company is entitled to a reasonable, pre-approved reimbursement for any costs of the audit incurred by the Company.
8.2 In addition to the foregoing, the Company shall respond to all reasonable requests for information made by the Client to confirm the Company’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon the Client’s written request to the Company, provided that the Client shall not exercise this right more than once annually.
To the extent required under applicable Data Protection Laws, the Company will, at the Client’s expense and taking into account the nature of the Processing and the information available to the Company, provide all reasonably requested information regarding the Services to enable the Client to carry out data protection impact assessments or prior consultations with anySupervisory Authorities, as required by such Data Protection Laws.
10.1 The Client acknowledges that the Company may transfer and Process Client Data to and in the United States and anywhere else in the world where the Company or its Sub-processors maintainProcessing operations. The Company shall, at all times, ensure that such transfers are made in compliance with the requirements of all applicable DataProtection Laws.
10.2 To the extent that the Company is a recipient of Client Data protected by EU Data Protection Laws (“EU Data”) in a country outside ofEurope that is not recognized as providing an adequate level of protection forPersonal Data (as described in applicable EU Data Protection Law), the Company agrees to abide by and Process EU Data in compliance with the Standard Contractual Clauses in the form set out in AnnexB. For the purposes of the descriptions in the Standard ContractualClauses, the Company agrees that it is the“data importer” and the Client is the “data exporter” (notwithstanding that the Client may itself be an entity located outside Europe).
10.3 To the extent theCompany adopts an alternative data export mechanism (including any new version of or successor to the Standard Contractual Clauses) for the transfer of EUData not described in this DPA (“Alternative Transfer Mechanism”),the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such AlternativeTransfer Mechanism complies with applicable EU Data Protection Laws and extends to the countries to which EU Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or Supervisory Authority orders(for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer EU Data (within the meaning of applicable EU DataProtection Laws), the Company may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of EUData.
11.1 The Company shall, to the extent required by the Data Protection Laws, promptly notify the Client upon receipt of a request by a Data Subject to exercise Data Subject rights under the applicable Data Protection Laws. The Company will advise the Data Subject to submit their request to the Client and the Client will be responsible for responding to such request, including, where necessary, by using the functionality of the Services.
11.2 The Company shall, taking into account the nature of the Processing, assist the Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Client’s obligation to respond to requests for exercising the Data Subject’s rights under the Data Protection Laws. If requested by theCompany, the Client will provide such information to the Company as is reasonable and necessary, including, but not limited to, user IDs associated with such the Data Subject, for the Company to unambiguously identify the DataSubject requesting to exercise their Data Subject rights.
The Company may disclose Client Data to the extent such data is required to be disclosed by law, by any government orSupervisory Authority, or by a valid and binding order of a law enforcement agency (such as a subpoena or court order), or other authority of competent jurisdiction. If any law enforcement agency government or Supervisory Authority sends the Company a demand for disclosure of Client Data, then the Company will attempt to redirect the law enforcement agency, government, or Supervisory Authority to request that data directly from the Client and the Company is entitled to provide the Client’s basic contact information to such law enforcement agency, government, or Supervisory Authority. If compelled to disclose Client Data pursuant to this Section 12, then Company will give the Client reasonable notice of the demand to allow the Client to seek a protective order or other appropriate remedy.
Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA(including the Standard Contractual Clauses) shall be subject to the exclusions and limitations of liability set forth in the Agreement, to the extent permitted by applicable Data Protection Laws. Any claims made against the Company under or in connection with this DPA (including, where applicable, theStandard Contractual Clauses) shall be brought solely by the Client entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
(a) To the extent the Company Processes Personal Data that is protected by the CCPA, the terms in this Section 14shall apply in addition to the terms in the remainder of the DPA. In the event of any conflict or ambiguity between the terms in this Section 14 and any other terms in this DPA, the terms in this Section 14 shall take precedence but only to the extent they apply to the Personal Data in question.
(b) The Company will not: (i) Sell (within the meaning of the CCPA) Personal Data; (ii) Process Personal Data for any purpose other than for the specific purposes set forth herein. For the avoidance of doubt, the Company will not Process Personal Data outside of the direct business relationship between the Client and Company; or (iii) attempt to link, identify, or otherwise create a relationship between Client Data and non-Client Data or any other data without the express authorization of theClient.
(c) The parties acknowledge that Client Data that has been de-identified is not “personal information” (within the meaning of the CCPA). The Company may de-identify Client Data only if it: (i) has implemented technical safeguards that prohibit re-identification of the DataSubject to whom the information may pertain; (ii) has implemented business processes that specifically prohibit re-identification of the information;(iii) has implemented business processes to prevent inadvertent release of de-identified information; and (iv) makes no attempt to re-identify the information.
(d) The Company hereby certifies that it understands its restrictions and obligations set forth in this Section 14and will comply with them.
This DPA shall remain in effect for as long as the Company carries out Client Data Processing operations on behalf of the Client or until termination of the Agreement (and all Client Data has been returned or deleted in accordance with Section 7 above). This DPA supersedes and replaces all prior representations, understandings, communications, and agreements by and between the parties in relation to ClientData and the matters set forth in this DPA. In the event of any conflict or inconsistency between this DPA and the Agreement, the provisions of the following documents (in order of precedence) shall prevail: (a) the StandardContractual Clauses; then (b) this DPA; and then (c) the Agreement. For matters not addressed under this DPA, the terms of the Agreement apply.
Subject Matter: The subject matter of the data Processing under this DPA is the Client Data.
Duration of Processing: The Company will process Client Data for the term of the Agreement plus the period until theCompany deletes all Client Data processed on behalf of the Client in accordance with the Agreement.
Nature and Purpose of Processing: The Company will Process Client Data on behalf of the Client for the following purposes:(a) Processing to perform the Services in accordance with the Agreement; (b)Processing initiated by the Client in its use of the Services; and (c) to comply with any other reasonable instructions provided by the Client that are consistent with the terms of the Agreement.
Categories of Data Subjects: The Personal Data transferred concern individuals about whom Personal Data is provided to theCompany via the Services by (or at the direction of) the Client or the Client’s end users. This may include, but is not limited to, Personal Data relating to the Client’s personnel, employees, and authorized users.
Types of Personal Data: The categories of Personal Data are determined by the Client in its sole discretion and include data relating to individuals provided to the Company via the Services, by (or at the direction of) the Client or personnel, employees, and authorized users.
Special Categories of Personal Data: The Company does not intentionally collect or Process any special categories of PersonalData.
For the purposes of Article 26(2) ofDirective 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:
Client is the data exporting organization (the data exporter)
Company is the data importing organization (the data importer);
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (theClauses) 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.
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) ‘technica land organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
1. 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, Clause8(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.
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 organizational 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, unauthorized 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 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.
(i) that, in the event of sub processing, 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).
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 organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 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.
(h) that, in the event of sub processing, 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 theClauses 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 Clause3 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 Clause11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
1. 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.
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.
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 fulfill 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 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 sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the MemberState 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.
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.
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.
The data exporter is the entity identified as the “Client” in the Agreement
The data importer is the entity identified as the “Company” in the Agreement.
The personal data transferred concerns categories of data subjects listed in Annex A of the DPA.
The personal data transferred concerns the categories of data listed in Annex A of the DPA.
The personal data transferred will be subject to the processing activities set forth in Annex A of the DPA.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are described in Section 5 of the DPA.