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DATA PROCESSING

DATA PROCESSING ADDENDUM

This Data Processing Addendum (this “Data Processing Addendum”) forms part of, and is subject to the provisions of, Triib’s Terms of Service (https://www.triib.com/terms-of-service). Capitalized terms that are not defined in this Data Processing Addendum have the meanings set forth in the Terms of Service. As used herein, “you” shall mean Customer, as defined in the Terms of Service, and “Services” shall mean Triib Services, as defined in the Terms of Service.

 

  1. Additional Definitions
    The following definitions apply solely to this Data Processing Addendum:

    1. The terms “controller”, “data subject”, “personal data”, “process,” “processing” and “processor” have the meanings given to these terms in EU Data Protection Law.
    2. “Breach” means a breach of the Security Measures resulting in access to Triib’s equipment or facilities storing Your Controlled Data and the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Controlled Data transmitted, stored or processed by Triib on your behalf and instructions through the Services.
    3. “Content” means your User Content and any content provided to us from Users, including without limitation payment information, text, photos, images, audio, video, code, and any other materials.
    4. “EU Data Protection Law” means any data protection or data privacy law or regulation of Switzerland or any European Economic Area (“EEA”) country applicable to Your Controlled Data, including, as applicable, the GDPR and the e-Privacy Directive 2002/58/EC.
    5. “GDPR” means the EU General Data Protection Regulation 2016/679.
    6. “Security Measures” is defined in Section 5.5 below.
    7. “Sub-Processor” means an entity engaged by Triib to process Your Controlled Data.
    8. “Your Controlled Data” means the personal data in the Content Triib processes solely on your behalf and instructions as part of the Services, but only to the extent that you are subject to EU Data Protection Law in respect of such personal data. Your Controlled Data does not include personal data when controlled by us, including without limitation data we collect (including IP address, device/browser details and web pages visited prior to coming to your website) with respect to your Users’ interactions with your website through their browser and technologies like cookies.

 

  1. Applicability
    This Data Processing Addendum only applies to you if you or your Users are data subjects located within the EEA, the United Kingdom or Switzerland and only applies in respect of Your Controlled Data. You agree that Triib is not responsible for personal data that you have elected to process through third party services or outside of the Services, including the systems of any other third-party cloud services, offline or on-premises storage. 
  1. Details of Data Processing
    1. Subject Matter. The subject matter of the data processing under this Data Processing Addendum is Your Controlled Data.
    2. Duration. As between you and us, the duration of the data processing under this Data Processing Addendum is determined by you.  
    3. Purpose. The purpose of the data processing under this Data Processing Addendum is the provision of the Services initiated by you from time to time.
    4. Nature of the Processing. The Services as described in the Terms of Service and initiated by you from time to time.
    5. Type of Personal Data. Your Controlled Data relating to you, your Users or other individuals whose personal data is included in Content which is processed as part of the Services in accordance with instructions given through your account.
    6. Categories of Data Subjects. You, your Users and any other individuals whose personal data is included in Content.

 

  1. Processing Roles and Activities
    1. Triib as Processor and You as Controller. You are the controller and Triib is the processor of Your Controlled Data.
    2. Triib as Controller. Triib may also be an independent controller for some personal data relating to you or your Users. Please see our Privacy Policy and Terms of Service for details about this personal data which we control. We decide how to use and process that personal data independently and use it for our own purposes. When we process personal data as a controller, you acknowledge and confirm that the Terms of Service does not create a joint-controller relationship between you and us. If we provide you with personal data controlled by us, such as in any access to data regarding your Users’ interactions with Triib Services, you receive that as an independent data controller and are responsible for compliance with EU Data Protection Law in that regard.
    3. Description of Processing Activities. We will process Your Controlled Data for the purpose of providing you with the Services, as may be used, configured or modified from within your account (the “Purpose”). For example, depending on how you use the Services, we may process Your Controlled Data in order to: (a) enable you to integrate content or features from a social media platform on your website; or (b) email your Users on your behalf.
    4. Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to Your Controlled Data and that Your Controlled Data is collected lawfully by you or on your behalf and provided to us by you in accordance with such laws, rules and regulations. You will also ensure that the processing of Your Controlled Data in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including EU Data Protection Law). You are responsible for reviewing the information available from us relating to data security pursuant to the Privacy Policy and making an independent determination as to whether the Services meet your requirements and legal obligations as well as your obligations under this Data Processing Addendum. Triib will not access or use Your Controlled Data except as provided herein and in the Privacy Policy, and as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.

 

  1. Our Processing Responsibilities
    1. How We Process: We will process Your Controlled Data for the Purpose and in accordance with the Terms of Service or instructions you give us through your account. You agree that the Terms of Service and the instructions given through your account are your complete and final documented instructions to us in relation to your Controlled Data. Additional instructions outside the scope of this Data Processing Addendum require prior written agreement between you and us, including agreement on any additional fees payable by you to us for carrying out such instructions. We will promptly inform you if, in our opinion, your instructions infringe applicable EU Data Protection Law, or if we are unable to comply with your instructions. We will notify you when applicable laws prevent us from complying with your instructions, except if such disclosure is prohibited by applicable law, including on important grounds of public interest, such as a prohibition under law to preserve the confidentiality of a law enforcement investigation or request.
    2. Notification of Breach: We will provide you notice without undue delay after becoming aware of and confirming the occurrence of a Breach for which notification to you is required under applicable EU Data Protection Laws. We will, to assist you in complying with your notification obligations under Articles 33 and 34 of the GDPR, provide you with such information about the Breach as we are reasonably able to disclose to you, taking into account the nature of the Services, the information available to us and any restrictions on disclosing the information such as for confidentiality. Our obligation to report or respond to a Breach under this Section is not and will not be construed as an acknowledgement by Triib of any fault or liability of Triib with respect to the Breach. Despite the foregoing, Triib’s obligations under this Section do not apply to incidents that are caused by you, any activity on your account and/or third-party services.
    3. Notification of Inquiry or Complaint: We will provide you notice, if permitted by applicable law, upon receiving an inquiry or complaint from a User, or other individual whose personal data is included in your Content, or a binding demand (such as a court order or subpoena) from a government, law enforcement, regulatory or other body in respect of Your Controlled Data that we process on your behalf and instructions.
    4. Reasonable Assistance with Compliance: We will, to the extent that you cannot reasonably do so through the Services, your account or otherwise, provide reasonable assistance to you in respect of your fulfillment of your obligation as controller to respond to requests by data subjects under Chapter 3 of the GDPR, taking into account the nature of the Services and information available to us. You are responsible for our reasonable costs arising from our provision of such assistance.
    5. Security Measures: 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, we will implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR (the “Security Measures”).   We may change these Security Measures but will not do so in a way that adversely affects the security of Your Controlled Data. We will take steps to ensure that any natural person acting under our authority who has access to Your Controlled Data does not process it except on our instructions, unless such person is required to do so under applicable law, and that personnel authorized by us to process Your Controlled Data have committed themselves to relevant confidentiality obligations or are under an appropriate statutory obligation of confidentiality.
    6. Sub-Processors: You agree that we can share Your Controlled Data with Sub-Processors in order to provide you the Services. We will impose contractual obligations on our Sub-Processors, and contractually obligate our Sub-Processors to impose contractual obligations on any further sub-contractors which they engage to process Your Controlled Data, which provide the same level of data protection for Your Controlled Data in all material respects as the contractual obligations imposed in this Data Processing Addendum, to the extent applicable to the nature of the Services provided by such Sub-Processor. A list of our current Sub-Processors is available upon request by sending an email to support@triib.com. Provided that your objection is reasonable and related to data protection concerns, you may object to any Sub-Processor by sending an email to support@triib.com. If you object to any Sub-Processor and your objection is reasonable and related to data protection concerns, we will use commercially reasonable efforts to make available to you a means of avoiding the processing of Your Controlled Data by the objected-to Sub-Processor. If we are unable to make available such suggested change within a reasonable period of time, we will notify you and if you still object to our use of such Sub-Processor, you may cancel or terminate your account or, if possible, the portions of the Services that involve use of such Sub-Processor. Except as set forth in this Section 5.6, if you object to any Sub-Processors, you may not use or access the Services. You consent to our use of Sub-Processors as described in this Section 5.6. Except as set forth in this Section 5.6 or as you may otherwise authorize, we will not permit any Sub-Processor to access Your Controlled Data. Triib will remain responsible for its compliance with the obligations of this Data Processing Addendum and for any acts or omissions of any Sub-Processor or their further sub-contractors that process Your Controlled Data and cause Triib to breach any of Triib’s obligations under this Data Processing Addendum, solely to the extent that Triib would be liable under the Terms of Service if the act or omission was Triib’s own.
    7. Triib Audits: Triib may (but is not obliged to) use external or internal auditors to verify the adequacy of our Security Measures or material compliance with Article 28 of the GDPR.
    8. Customer Audits and Information Requests: You agree to exercise any right you may have to conduct an audit or inspection by instructing Triib to carry out the audit described in Section 5.7. You agree that you may be required to agree to a non-disclosure agreement with Triib before we share any such report or outcome from such audit with you and that we may redact any such reports as we consider appropriate. If Triib does not follow such instruction or if it is legally mandatory for you to demonstrate compliance with EU Data Protection Law by means other than reviewing a report from such an audit, you may only request a change in the following way:
      1. First, submit a request for additional information in writing to Triib, specifying all details required to enable Triib to review this request effectively, including without limitation the information being requested, what form you need to obtain it in and the underlying legal requirement for the request (the “Request”). You agree that the Request will be limited to information regarding our Security Measures or material compliance with Article 28 of the GDPR.
      2. Within a reasonable time after we have received and reviewed the Request, you and we will discuss and work in good faith towards agreeing on a plan to determine the details of how the Request can be addressed. You and we agree to use the least intrusive means for Triib to verify Triib’s compliance with the Security Measures or material compliance with Article 28 of the GDPR in order to address the Request, taking into account applicable legal requirements, information available to or that may be provided to you, the urgency of the matter and the need for Triib to maintain uninterrupted business operations and the security of its facilities and protect itself and its customers from risk and to prevent disclosure of information that could jeopardize the confidentiality of Triib or our users’ information.
      3. You will pay our costs in considering and addressing any Request. Any information and documentation provided by Triib or its auditors pursuant to this Section 5.8 will be provided at your cost. If we decline to follow any instruction requested by you regarding audits or inspections, you may cancel any affected Services.
    9. Questions: Upon your reasonable requests to us for information regarding our compliance with the obligations set forth in this Data Processing Addendum, we shall, where such information is not otherwise available to you, provide you with written responses, provided that you agree not to exercise this right more than one (1) time per calendar year (unless it is necessary for you to do so to comply with EU Data Protection Law). The information to be made available by Triib under this Section 5.9 is limited to solely that information necessary, taking into account the nature of the Services and the information available to Triib, to assist you in complying with your obligations under the GDPR in respect of data protection impact assessments and prior consultation. You agree that you may be required to agree to a non-disclosure agreement with Triib before we share any such information with you.  
    10. Requests: You can delete or access a copy of some of Your Controlled Data through your account. For any of Your Controlled Data which may not be deleted or accessed through your account, upon your  written request, we will, with respect to any of Your Controlled Data in our or our Sub-Processor’s possession that we can associate with a data subject, subject to the limitations described in the Terms of Service and unless prohibited by applicable law or the order of a governmental, law enforcement or regulatory body: (a) return such data and copies of such data to you provided that you make such request within no more than ninety (90) days after the cancellation of the applicable Services; or (b) delete, and request that our Sub-Processors delete, such data (excluding in the case of (a) or (b) any of such data which is archived on back-up systems, which we shall securely isolate and protect from any further processing, except to the extent required by applicable law). Otherwise, we will delete Your Controlled Data in accordance with our data retention policy. This Section 5.10 does not apply to personal data held by third party services. 
  2. Data Transfers
    1. Customer hereby consents to the transfer of Your Controlled Data to, and the processing of Your Controlled Data in, the United States of America. 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 A (the “SCCs”) and made a part of this Data Processing Addendum in their entirety.
       
  3. Liability
    1. The liability of each party under this Data Processing Addendum is subject to the exclusions and limitations of liability set out in the Terms of Service. You agree that Triib shall not be liable for any regulatory penalties or claims by data subjects or others incurred by Triib in relation to Your Controlled Data that arise as a result of, or in connection with, your failure to comply with your obligations under this Data Processing Addendum or EU Data Protection Law (“Regulatory Penalties”) and, without limitation of your other obligations under the Terms of Service, such Regulatory Penalties shall reduce Triib’s maximum aggregate liability to you under the Terms of Service in the same amount as the fine and/or liability incurred by us as a result. 
  4. Conflict
    1. In the event of a conflict between this Data Processing Addendum and the Terms of Service, this Data Processing Addendum will control. 
  5. Miscellaneous
    1. You are responsible for any costs and expenses arising from Triib’s compliance with your instructions or requests pursuant to the Terms of Service (including this Data Processing Addendum) which fall outside the standard functionality made available by Triib generally through the Services.

 

Exhibit A

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
  • Triib (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 ;
  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 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.

 

Clause 2

Details of the transfer

  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. 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:

 

  1. 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, 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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;
  9. 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
  10. that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5

Obligations of the data importer  

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 organizational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. 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;
    2. any accidental or unauthorized access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
  1. 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;
  2. 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;
  3. 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;
    1.  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, defense, public security, the prevention, investigation, detection and prosecution of criminal offenses 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 recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
  1. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  2. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  3. 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.
  1. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  2. 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

 

  1. 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

 

  1. 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. Where the sub-processor 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 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.
    1. 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.
  1. 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.
  2. 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.

 

 

 

Appendix 1

to the Standard Contractual Clauses

 

  • This Appendix forms part of the Clauses and must be completed and signed by the parties
  • The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

 

Data exporter

  • The data exporter is (please specify briefly your activities relevant to the transfer):
  • 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):
  • Users (as defined in the Terms of Service)

 

Categories of data

  • The personal data transferred concern the following categories of data (please specify):
  • Your Controlled Data (as defined in the Data Processing Addendum)

 

Special categories of data (if appropriate)

  • The personal data transferred concern the following special categories of data (please specify):
  • Biometric information and other information data exporter chooses to collect (and data exporter’s Users choose to provide) through the Services.

 

Processing operations

  • The personal data transferred will be subject to the following basic processing activities (please specify): 
  • The 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 services to data exporter in accordance with the terms of the Agreement.

 

 

Appendix 2

to the Standard Contractual Clauses

 

  • This Appendix forms part of the Clauses and must be completed and signed by the parties.
  • Description of the technical and organizational 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 risk.