Data Transfer Addendum to AudioMatic Buyer Agreement.
This DATA TRANSFER ADDENDUM (this “Addendum”) is entered into by and between AdsWizz Inc. (“AdsWizz”) and Company and incorporated into the AudioMatic Buyer Agreement by reference. AdsWizz and Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. The Parties hereby agree as follows:
Subject matter of the Addendum
1.1 Pursuant to the AudioMatic Buyer Agreement (defined below) by and between the Parties, the Parties wish to share certain Personal Data/Personal Information through the use of AudioMatic as part of the bidding process to serve relevant advertisements to users of a Publisher Property.
1.2 This Addendum outlines each Party’s respective obligations when processing Personal Data/Personal Information, where applicable, pursuant to the AudioMatic Buyer Agreement. Any term in this Addendum regarding the Parties’ respective obligations under CCPA applies only to the extent that CCPA applies to any Personal Information being processed by AdsWizz on Customer’s behalf under the AudioMatic Buyer Agreement.
1.3 The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the AudioMatic Buyer Agreement, the GDPR, or CCPA as applicable.
1.4 Except as modified below, the terms of the AudioMatic Buyer Agreement shall remain in full force and effect.
Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For the purposes of AdsWizz, “Affiliates” shall be construed solely as AdsWizz Affiliates.
“AdsWizz Affiliates” means AdsWizz’s wholly-owned subsidiaries.
“Applicable Laws” means the federal, national, international and state laws, rules and regulations applicable to the Parties, in the performance of their respective duties and obligations under the AudioMatic Buyer Agreement, including without limitation, GDPR and CCPA.
“AudioMatic Buyer Agreement” means the executed written agreement between Company and AdsWizz governing Company’s use of AdsWizz’s demand side platform, to which this Addendum is attached and hereby incorporated by reference.
“Business” is as defined in Data Protection Laws.
“Business Purpose” is as defined in Data Protection Laws.
“California Consumer Privacy Act of 2018” or “CCPA” means the California Consumer Privacy Act at Cal. Civ. Code Section 1798.100-1798.199 and any subsequent legislation including any amendments or regulations.
“Commission” is as defined in the GDPR.
“Company Data” is as defined in Section 3(1).
“Computer Malware” means any (a) software, code, program, or sub-program designed to damage, halt, or interfere with the operation of the infected computer system, or the operation of the software, code, program, or sub-program itself; (b) device, method, or token that permits any person to circumvent the normal security of software or a data system; or (c) other parasitic program written intentionally to enter a computer program or network without the user’s permission or knowledge, that damages or is intended to damage, modify, or disrupt the operation of software or hardware.
Consumer” is as defined in the CCPA or otherwise in Data Protection Laws as applicable.
“Controller” is as defined in the GDPR.
“Data Protection Laws” means Applicable Laws governing data protection or privacy.
“Data Subject” means (i) an identified or identifiable natural person who is in the EEA or whose rights are protected by the GDPR; or (ii) a “Consumer” as defined for the purposes of this Addendum.
“Data Subject Rights” means the rights of Data Subjects identified in Data Protection Laws as applicable.
“European Economic Area” or “EEA” means the European Union’s member countries and Iceland, Lichtenstein and Norway.
“GDPR” means the General Data Protection Regulation no. 2016/679.
“Member State” is as defined in the GDPR.
“Personal Data” is as defined in the GDPR. Personal Data also includes any definition in any Data Protection Law relating to personal identifying or identifiable information as applicable under such law, with the exception of CCPA.
“Personal Data Breach” is as defined in the GDPR.
“Personal Information” is as defined in the CCPA.
“Processing” is as defined in the GDPR, or otherwise in Data Protection Laws as applicable.
“Processor” is as defined in the GDPR.
“Publisher” is as defined in the AudioMatic Buyer Agreement.
“Publisher Data” is as defined in Section 3(1).
“Sell” is as defined in the CCPA or otherwise in Data Protection Laws as applicable.
“Service Provider” is as defined in the CCPA.
“Services” means the services and products provided by a Party to the other Party in connection with the AudioMatic Buyer Agreement or any other services provided by a Party during the term of the AudioMatic Buyer Agreement in order to enable the delivery of the services under the AudioMatic Buyer Agreement.
“Sub-sub-Processor” means a party appointed by Company to Process Personal Data on behalf of AdsWizz.
- Relationship of the Parties
3.1 This Addendum governs: Personal Information/Personal Data AdsWizz shares with Company at the direction of Publisher in connection with the operation of AudioMatic, including, but not limited to those data points listed in Exhibit A to this Addendum (“Publisher Data”); and the Personal Information/Personal Data Company shares with AdsWizz when Company instructs AdsWizz to use such data for the purposes of providing the Services pursuant to the AudioMatic Buyer Agreement (“Company Data”).
3.2 Each Party represents to the other Party, that when acting in its capacity as Controller in utilizing the Services: (i) the Party has collected all Personal Data/Personal Information in accordance with applicable Data Protection Laws; and (ii) the Party’s instructions to the other Party for Processing of Personal Data/Personal Information in accordance with this Addendum will not cause the other Party to violate applicable Data Protection Laws.
- Processing Publisher Data
4.1 Purpose of Processing. AdsWizz shall make available to Company Publisher Data for the sole purpose of Company placing bids on the AudioMatic platform or as otherwise set forth in the AudioMatic Buyer Agreement. Company shall process Publisher Data received from AdsWizz solely: (i) for the purpose of enabling Company to place such bids; (ii) consistent with the instructions set forth by AdsWizz’s Publishers in Exhibit A to this Addendum; and (iii) at all times in compliance with this Addendum, Data Protection Laws, and the AudioMatic Buyer Agreement.
4.2 Instructions for Processing Publisher Data. Company shall process Publisher Data in accordance with the instructions set forth in Exhibit A to this Addendum. If any Sub-Processor of Company will be Processing Customer Personal Data/Personal Information on behalf of the AdsWizz, Company shall enter into a written agreement with such Sub-sub-Processor that includes terms substantially equivalent to those set out in this Addendum. If any Sub-sub-processor fails to fulfil its data protection obligations, Company agrees that it will remain fully liable to AdsWizz for the performance of the Sub-sub-processor’s obligations. Company will instruct any Sub-sub-Processor engaged by Company to Process Customer Personal Data/Personal Information according to instructions which are reasonably equivalent to the instructions as set forth in the Data Processing Instructions attached in EXHIBIT A. Company shall make commercially reasonable efforts to have such Sub-sub-processors adhere to the same or similar technical and organizational security measures as contemplated by this Addendum. Sub-sub-processors will agree to submit documentation describing the implementation of the technical and organizational measures at the request of AdsWizz.
Company shall give prior written notice of new and replacement sub-sub-processors prior to them starting sub-processing of Publisher Data, and shall provide a mechanism to allow AdsWizz to receive notices of updates to the list. (e.g. by email to privacy@www.adswizz.com or to other email address as directed by AdsWizz in writing (including by email) to Company from time to time.
4.3 Compliance and Right to Audit. Company shall reasonably assist AdsWizz in ensuring compliance with AdsWizz’ obligations pursuant to Art. 32 – 36 GDPR, in particular with respect to the security of the Processing, data protection impact assessments and consultation of supervisory authorities. Upon written request, Company shall provide AdsWizz with the information required for the preparation of the list of Processing operations under GDPR. Upon AdsWizz’s written request no less than thirty (30) days in advance, Company shall make available to AdsWizz any other information necessary to demonstrate compliance with the obligations set forth in this Addendum and GDPR as applicable. Company shall cooperate with an audit request from AdsWizz or Publisher, which may include an inspection conducted by AdsWizz or an independent third party no more frequently than once per calendar year.
- Processing Company Data
5.1 Purpose of Processing. To the extent required and as instructed by Company, AdsWizz shall Process Company Data for the purpose required to perform the Services under the AudioMatic Buyer Agreement.
5.2 Instructions for Processing. AdsWizz shall process Company Data: (i) to enable Company to place Bids; (ii) in a manner consistent with the instructions made available by the Company in Exhibit B to this Addendum, or other written instruction provided by Publisher; and (iii) at all times in compliance with this Addendum and the AudioMatic Buyer Agreement.
5.3 Compliance and Right to Audit. AdsWizz shall reasonably assist Company in ensuring compliance with Company’s obligations pursuant to Art. 32 – 36 GDPR, in particular with respect to the security of the Processing, data protection impact assessments and consultation of supervisory authorities. Upon written request, AdsWizz shall provide Company with the information required for the preparation of the list of Processing operations under GDPR. AdsWizz shall cooperate with an audit request from Company, which may include an inspection conducted by Company or an independent third party no more frequently than once per calendar year.
5.4 Any information or documentation disclosed or made available by a Party to the other Party under Section 4.3 or 5.3 shall be considered Confidential Information of the disclosing Party and subject to the confidentiality provisions in the AudioMatic Buyer Agreement or any other written agreement between the Parties.
- Sub-Processors
The Parties agree that either Party may engage (Sub)-sub-Processors, provided that such Sub-Processor agrees to Process Personal Data/Personal Information in a manner consistent with and no less protective of the Personal Data/Personal Information than the terms of this Addendum. A list of Sub-Processors shall be provided to the other Party in the Exhibit B or upon request.
- Transfers of Personal Data
Processing of Personal Data/Personal Information for Services delivered through the AdsWizz AdDelivery Platform is performed utilizing Amazon Web Services data centers. Additional processing may be performed by AdsWizz Affiliates located in Romania. To the extent that Data Protection Laws governing cross-border transfer of Personal Data or Personal Information apply, neither Party shall transfer any Personal Data (nor permit any Personal Data to be transferred or accessed) from a territory outside of the European Economic Area (each a “Transfer”) unless such Transfer complies with the relevant Data Protection Laws, including the application of transfer mechanisms or supplemental measures necessary to effect such Transfer to the United States. Where GDPR applies, such mechanisms may include (without limitation) transferring the Personal Data (i) to a recipient in a country that the European Commission has decided ensure an adequate level of protection for Personal Data, (ii) to a recipient that maintains approved binding corporate rules in accordance with GDPR, (iii) to a recipient that has executed or otherwise agreed in writing to comply with the Standard Contractual Clauses adopted or approved by the European Commission, or (iv) under any other framework deemed lawful by the relevant authority under applicable Data Protection Laws.
Company hereby consent to any transfer of Company Data from or to AdsWizz from or to an AdsWizz Affiliate, subject to compliance by the relevant AdsWizz Affiliate with the terms of this Addendum.
- Security
8.1 Security of Processing. Each Party shall implement technical and organizational measures to protect the Personal Data/Personal Information it processes to prevent the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data/Personal Information transmitted, stored, or otherwise processed as the Party deems appropriate, including any appropriate measures referred to in Article 32(1) of the GDPR and the measures referred to in CCPA. Upon written request of a Party, the other Party shall provide documentation describing its implementation of such technical and organizational measures. Each Party shall further ensure that personnel authorized to process Personal Data/Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Each Party shall be responsible for assessing its own level of security and evaluating the effectiveness of its own security measures, provided that Company’s technical measures shall include up-to-date anti-virus software and security measures that meets current industry practices to prevent the transmission of Computer Malware into AdsWizz’s or AdsWizz Affiliates’ systems.
8.2 Security Incidents. In the event that Company suffers a confirmed Personal Data Breach, it shall notify AdsWizz without undue delay upon Company becoming aware of the Personal Data Breach and in accordance with the timelines required by the applicable Data Protection Laws but no later than forty-eight (48) hours, and the Parties shall cooperate in good faith to mutually agree and act on the measures necessary to mitigate or remedy the effects of the Personal Data Breach.
8.3 Assistance. To the extent required by Data Protection Laws, each Party shall provide assistance to the other Party as necessary for the other Party to meet data security, data protection impact assessments, and prior consultation requirements in accordance with the Party’s role in processing the Personal Data.
9. Data Retention and Deletion.
9.1 Deletion of Publisher Data. Company shall retain copies of Publisher Data for a period of no longer than ninety (90) days (the “Retention Period”) from the date of termination of any Services involving the Processing of Publisher Data. Upon expiration of the Retention Period, Company shall promptly delete and procure the secure deletion of all copies of Publisher Data.
9.2 Data Retention Required by Law. Each Party may retain Personal Data/Personal Information to the extent required by Applicable Laws for such period of time required by Applicable Laws; provided, however, that each Party ensures the confidentiality of all such Personal Data/Personal Information and that such Personal Data/ Personal Information is only Processed as is necessary for the purpose(s) specified in the Applicable Laws requiring the storage of Personal Data/Personal Information and for no other purpose.
- Data Subject Rights
10.1 AdsWizz shall: (i) promptly notify Company if AdsWizz or its Sub-Processor receives a Data Subject Rights request in relation to Company Data; and (ii) shall ensure that neither AdsWizz nor its Sub-Processors responds directly to the Data Subject on such Data Subject request, other than upon written instructions from Company or as required by Applicable Laws. Where Applicable Laws require such response, AdsWizz shall, to the extent permitted by law, inform Company of such AdsWizz or AdsWizz’s Sub-Processors’ obligation before responding to any request.
10.2 Company shall: (i) promptly notify AdsWizz if Company or its Sub-Processor Processor receives a Data Subject Rights request in relation to Publisher Data; and (ii) shall ensure that neither Company nor its Sub-Processors responds directly to the Data Subject on such Data Subject request, other than upon written instructions from AdsWizz or Publisher, or as required by Applicable Laws. Where Applicable Laws require such response, Company shall, to the extent permitted by law, inform AdsWizz of Company’s obligation before responding to any request.
- Miscellaneous
- In the event of any conflict between this Addendum and the AudioMatic Buyer Agreement, these terms shall govern solely with respect to the subject matter hereof.
- Changes in Data Protection Laws. AdsWizz may notify Company in writing from time to time of any amendments to this Addendum resulting from a change in Data Protection Laws, including, without limitation, to the generality of the foregoing, any variations which are: (i) required as a result of any changes to Data Protection Laws following the exit of the UK from the EU; or (ii) required to take account of any new data transfer mechanisms. Any such amendments shall take effect thirty (30) calendar days after written notice is sent by AdsWizz.
- Governing Law. This Addendum and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Romania for the Companies that are legally incorporated in a country of EEA, and in accordance with the laws of California for Service Providers that are legally incorporated elsewhere.
- Severability. If any provision, or portion thereof, of this Addendum is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality, or enforceability of the remaining provisions of this Addendum, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct and amended as necessary to ensure its validity and enforceability, while preserving the intentions of the Parties as closely as possible.
- This Addendum constitutes the entire understanding between AdsWizz and Company relating to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to the subject matter of this Addendum.
EXHIBIT A – Data Processing Instructions for Company
In accordance with the agreements by and between Publishers, acting as Controllers, and AdsWizz, acting as a Processor, AdsWizz Processes Personal Data/Personal Information for the purposes of providing Publishers with advertising and/or audience analytics solutions and in accordance with other instructions provided by the Publishers.
These Data Processing Instructions describe Publishers’ instructions relating to the data processing activities to be carried out by AdsWizz and AdsWizz Sub-Processors, including Company, with regard to Publisher Data. Company shall abide by these instructions when Processing Publisher Data in accordance with the AudioMatic Buyer Agreement.
Authorized Data and Data Categories
Except when instructed otherwise by AdsWizz, Company is authorized to process the following data:
- User IP Address
If Data Subject accesses a web browser and/or HTTP-connected device in order to use Publishers’ music/podcasting site/services, in addition to User IP address, Company may process:
- User device operating system and language
- User device type (aka “User-Agent”)
- User AdsWizz cookies OAID, OAGEO, sessionID
- User AdsWizz Listener ID
If Data Subject uses a mobile device or mobile application in order to use the Publishers’ music/ podcasting services, in addition to User IP address, Company may process:
- User-resettable Advertising ID (g., IDFA, AAID, MAID)
- User Device non-precise geolocation
- User AdsWizz Listener ID
Prohibited Processing for the Company
Except as otherwise instructed by AdsWizz, Company shall not Process Personal Information/Personal Data of Publishers’ users for any purpose other than as set forth in this Addendum, and shall not:
- Sell Publisher Data; or
- retain, use, or disclose the Personal Information/Personal Data for any commercial purpose other than for the specific purpose of fulfilling its obligations specified in the AudioMatic Buyer Agreement.
Prohibited Categories of Data
Company is prohibited from collecting and/or processing Personal Data/Personal Information that contains: (i) racial or ethnic origin; (ii) political opinions; (iii) religious or philosophical beliefs; (iv) trade union membership; (v) genetic data; (vi) biometric data for the purpose of uniquely identifying a natural person; (vii) data concerning health; and/or (viii) data concerning a natural person’s sex life or sexual orientation.
EXHIBIT B (Sub)-Sub-Processors
[DRAFTING NOTE: Specify name of Subprocessors and their location. Please include affiliates of Service Providers as separate legal entities count as Subprocessors from a legal/data protection perspective.]
| Name of entity conducting the data processing (i.e. Service Provider or a Subprocessor (affiliate or subcontractor) | Country | Description of processing activity | Data Transfer Mechanism (indicate “SCCs”, BCRs or N/A) | |
| 1 | [insert legal entity name] | [insert country] | [insert description e.g. Hosting Services / technical support / customer services] | |
| 2 | ||||
| 3 |
EXHIBIT C- Standard contractual clauses (processors)
For the avoidance of doubt, in the event that the European Commission approves a successor set of controller to processor Standard Contractual Clauses (“New SCCs”), or the UK authorities issue a set of controller to processor Standard Contractual Clauses (“UK SCCs”), the New SCCs and the UK SCCs if applicable to the processing shall be incorporated by reference in this Addendum in place of the previously approved set of SCCs.
Name of the data exporting organisation: …
Address: …
Tel. …; fax …; e-mail: …
Other information needed to identify the organisation
…
(the data exporter)
And
Name of the data importing organisation: …
Address: …
Tel. …; fax …; e-mail: …
Other information needed to identify the organisation:
…
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
| (a) | ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1); |
| (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 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; |
| (e) | ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; |
| (f) | ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. |
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
| 1. | The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary. |
| 2. | The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. |
| 3. | The data subject can enforce against the 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
Obligations of the data exporter
The data exporter agrees and warrants:
| (a) | that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; |
| (b) | that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses; |
| (c) | that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; |
| (d) | that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; |
| (e) | that it will ensure compliance with the security measures; |
| (f) | that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; |
| (g) | to forward any notification received from the data importer or any 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; |
| (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 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 |
| (j) | 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:
| (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:
|
| (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 sub-processor will be carried out in accordance with Clause 11; |
| (j) | 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.
The data importer may not rely on a breach by a sub-processor 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 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:
|
| 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, namely …
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
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 (3). 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, namely … |
| 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. |
| 2. | 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. |
On behalf of the data exporter:
Name (written out in full): …
Position: …
Address: …
Other information necessary in order for the contract to be binding (if any):
| Signature … |
On behalf of the data importer:
Name (written out in full): …
Position: …
Address: …
Other information necessary in order for the contract to be binding (if any):
| Signature … |
- (1)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)Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
- (3)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.
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