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Adaptavist

Data Processing Addendum

Adaptavist offers a Data Processing Addendum (DPA) that supplements the End User License Agreement https://www.adaptavist.com/adaptavist-eula or other applicable agreement for products.
This addendum (text below) reflects our obligations as a processor of customer data.
Please contact us by email at contractuals@adaptavist.com to obtain a PDF version of the Data Processing Addendum for signing.

1 General

This Adaptavist Data Processing Addendum dated June 2021 (the “Addendum”) is between you and Adaptavist Group Limited (company number 06878779 (“Adaptavist”). This Addendum, together with the Annex’s thereto attached, amends and forms part of the Adaptavist End User License Agreement (the “Agreement”) and the Adaptavist Website Terms and Conditions (the “Terms.”). This Addendum shall apply to all Personal Data processed by Adaptavist.

2 Definitions

2.1 The terms below shall have the following meanings:

2.1.1 “CCPA” means the California Consumer Privacy Act, as may be amended from time to time, and any rules or regulations implementing the foregoing.

2.1.2 “Controller” shall have the meaning as the context provides (i) as given in the GDPR ; and additionally (ii) any "business' as defined under the CCPA.

2.1.2.1 "Data Controller" shall have the same meaning as Controller.

2.1.3 “Customer”, “you/You”, “your/Your” means, depending on the context, either (a) the entity or individual entering into the Agreement; or (b) the entity or individual using the Adaptavist Website.

2.1.4 "Data Protection Law" means European Data Protection Law including UK GDPR and U.S. Data Protection Law that are applicable to the processing of Personal Data under this Addendum.

2.1.5 "Data Subject", "Personal Data", "Personal Data Breach", "Processing" and "appropriate technical and organisational measures” as used in this Addendum shall have the meanings given in the GDPR irrespective of whether GDPR, UK GDPR, or U.S. Data Protection Law applies.

2.1.6 "Data Subject Request" means a request from a Data Subject to exercise their rights under the applicable Data Protection Law(s) including right of access, right to rectification, restriction of processing, erasure (“right to be forgotten”), data portability, objection to Processing, or the right not to be subject to an automated individual decision making.

2.1.7 "Europe" means, for the purposes of this Addendum, the member states of the European Economic Area, Switzerland and the United Kingdom.

2.1.8 "European Data Protection Law" means any data protection and privacy laws of Europe applicable to the Personal Data in question, including where applicable

2.1.8.1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)("GDPR"); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) any applicable national implementations of (i) and (ii); (iv) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance; and (v) in respect of the United Kingdom, the Data Protection Act 2018, UK GDPR and 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 United Kingdom leaving the European Union; in each case as may be amended, superseded or replaced from time to time;

2.1.8.2 “U.S. Data Protection Law” means data protection or privacy laws applicable to Personal Data in force within the United States, including the CCPA.

2.1.9 “Hosted Services” includes products and services which are commercially available via a cloud-based platform (or SaaS mechanism). Within the Atlassian context, this includes Cloud variants of Adaptavist products available via Atlassian Cloud platforms. This also includes Slack and Trello apps, which are made available via cloud-based SaaS platforms available from those vendors.

2.1.10 “Processor” shall have the meaning as the context provides (i) as given in the GDPR ; and additionally (ii) any “service provider” as defined by the CCPA.

2.1.10.1 "Data Processor" shall have the same meaning as Processor.

2.1.11 “Product” means software as well as hosted services which are commercially available via a Cloud based platform.

2.1.12 “Sensitive Personal Data” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

2.1.13 "Standard Contractual Clauses" means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out in Annex- Standard Contractual Clauses; as amended, superseded or replaced by the European Commission or by a competent United Kingdom authority (as appropriate) from time to time.

3 Security

3.1 Adaptavist shall implement and maintain appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration, or disclosure in accordance with the provisions of Annex - Security detailed below.

3.2 Adaptavist undertakes analysis of the risks presented by our processing and implements security measures and policies commensurate with the level of risk that is established. These measures and policies are periodically reviewed and may be updated from time to time.

3.3 Where a Personal Data Breach has occurred Adaptavist shall inform the Customer, and in accordance with relevant Data Protection Law any other affected parties, without undue delay and take all reasonable measures to mitigate its possible adverse effects.

4 Nature, Scope and Purpose of Processing

4.1 Adaptavist shall process Personal Data on behalf of, and with the consent and upon instruction from the Controller in compliance with Article 6 of the GDPR. The basis of consent for the processing of Personal Data gathered in the course of providing a Product to the Customer shall be considered to be the acceptance of the Agreement.

4.2 Customer Personal Data provided is used for the purposes of technical administration of the website, customer management in accordance with the Adaptavist Terms and Conditions and Privacy Policy, the provision of Products to You in accordance with the Agreement, and to understand Customer needs and personalise content on the website.

4.3 Adaptavist does not knowingly process any Special Categories of data.

4.4 Subject to the Clause “Deletion” of the Annex - Security of this Addendum, Personal Data shall be processed for the duration of the Agreement unless otherwise agreed to in writing.

4.5 Personal Data shall be processed as set out in the table below, which describes the Sub-processors, the Personal Data being processed (by category) and the Purpose (in terms of whether the purpose of using that Sub-processor for processing the Personal Data is for our website including marketing, our Hosted Services, on-premises Products or commercial or payment related, or other reason):

Sub-processorPersonal Data being processedPurpose of the processing
Product General DataProduct Administrative DataProduct Personal Profile DataTransactional and Commerce DataIn-product analytics dataCookiesInteraction Data
Elastic.coYes(On-premises) Products, Hosted Services
AWSYesYesYesYesYes(On-premises) Products, Hosted Services
Auth0YesYesHosted Services
StripeYes3rd Party Payment providers
PaddleYes3rd Party Payment providers
GumroadYes3rd Party Payment providers
HubspotYes3rd Party Payment providers
XeroYesPayment / invoicing processing
ShopifyYes3rd Party Payment providers
SegmentYes(On-premises) Products, Hosted Services
GoogleYes(On-premises) Products, Hosted Services
HotjarYes(On-premises) Products, Hosted Services
HubspotYes(On-premises) Products, Hosted Services, Website
SquarespaceYes(On-premises) Products, Hosted Services, Website
FacebookYesWebsite
LinkedInYesWebsite
where the definitions of the different categories of Personal Data and examples are in the table below:
Data CategoryDefinition of the Data CategoryPersonal Data
(Product) General DataUser generated or configured content or data such as scripts or configuration of cloud based products.Such data may contain Personal Data depending on whether users configure products to include Personal Data, though it is not necessary by design.
(Product) Administrative DataAutomatically generated log files, account configuration, license management or similar data.Depending on configuration: administrative login details.
(Product) Personal Profile DataData which relates to an individual user account; data held in a specific set of database tables and for a narrow purpose of logically identifying users.This Personal Profile Data may include user names, display names and email depending on how the user configures the products.
Transactional and Commerce DataData related to specific purchases or transactions of products either via a 3rd party marketplace or Adaptavist resource.This may include Personal Data such as name, address or contact information depending on requirements for processing.
(Product) In-Product Analytics DataThis data includes user behaviour information, including but not limited to buttons clicked, pages viewed and actions taken while using one of our apps or browsing one of the connected websites.This may include IP address.
CookiesThis type of data is used across the website, our hosted services and for multiple purposes including analytics, accounts - see the Privacy Policy for fuller details of different cookies.Personal information to provide our services including: accounts creation & access for hosted services; the website.
Interaction DataIncludes information you provide us through website (potentially including support websites), communications with us in various, or through any social media platform.Data which may include name, email, billing or shipping addresses, telephone numbers, screen names, user IDs (potentially with password) or similar depending on the nature of interaction.

5 Data Transfers

5.1 You agree that this Clause, “Data Transfers” shall apply only to data that is protected by European Data Protection Law and subsequently transferred outside of Europe or any such territory which is subject to a current finding by the European Commission or by a competent United Kingdom authority under the applicable European Data Protection Law that the territory provides adequate protection for the privacy rights of individuals.

5.2 You acknowledge that Adaptavist is a multinational company, with offices located in Europe, North America, Asia and, Australia and that from time to time Personal Data may be transferred from one Adaptavist entity, as listed in Annex- Adaptavist Entities, to another Adaptavist entity, in order to provide Customers with the best possible service, subject to the conditions under Clause 5.4.

5.3 You acknowledge that Adaptavist may engage the sub-processors listed in Annex – Adaptavist Entities to provide services to You, and that such sub-processors that have access to Personal Data may be located outside of Europe or any territory which has an adequacy decision in place, subject to the conditions under Clause 5.4.

5.4 Adaptavist shall only process Personal Data outside of Europe under the following conditions:

5.4.1 The processing occurs in a territory which is subject to a finding by the European Commission or by a competent United Kingdom authority under the Data Protection Law which states that the territory provides adequate protection for the privacy rights of Data Subjects.

5.4.2 Adaptavist has entered into a valid cross-border transfer mechanism under European Data Protection Law with the entity that will receive such information such as the Standard Contractual Clauses outlined in Annex – Standard Contractual Clauses.

6 Rights of the Data Subject and Data Subject Requests:

6.1 Adaptavist shall use commercially reasonable endeavours to promptly notify Customer, where appropriate, if it receives a Data Subject Request.

6.2 The Customer is responsible for ensuring all Data Subject Requests are handled in accordance with the applicable Data Protection Laws.

6.3 Taking into account the scope and nature of the Processing, Adaptavist shall assist Customer by appropriate technical and organisational measures, where possible, for the fulfilment of Customer’s obligations to respond to a Data Subject Request under the applicable Data Protection Law(s).

6.4 Adaptavist shall upon Customer’s request use commercially reasonable efforts to assist Customer to respond to a Data Subject Request, to the extent Adaptavist is legally permitted to do so, and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Adaptavist's provision of such assistance.

7 Obligations of the Data Controller

7.1 The Data Controller shall;

7.1.1 Comply with and demonstrate compliance with all applicable Data Protection Laws.

7.1.2 Maintain internal documentation which states how and why Personal Data is processed, to the extent required by applicable Data Protection Laws.

7.1.3 Comply with the ICO or any other relevant supervisory body, including notifying the relevant supervisory body of any Personal Data Breach within 72 hours of becoming aware of such a breach unless the breach does not risk the rights and freedoms of the Data Subject.

7.1.4 Notify the Data Subject of any Personal Data Breach which is likely to risk their rights and freedoms without undue delay.

7.1.5 Carry out a data protection impact assessment where the processing of Personal Data is highly likely to risk the rights and freedoms of the Data Subject, consulting the relevant supervisory body where necessary.

7.1.6 Ensure that its instructions for the processing of Personal Data shall comply with applicable Data Protection Law(s).

7.2 Controller shall have sole responsibility for the accuracy, quality, acquisition and legality of Personal Data.

7.3 You agree not to use Hosted Services for processing of Sensitive Personal Data and that Adaptavist has no liability under this Addendum for processing for Sensitive Personal Data.

8 Obligations of the Data Processor

8.1 The Data Processor shall;

8.1.1 Process the Personal Data only in accordance with the written instructions of the Data Controller.

8.1.1.1 Customer agrees that this Addendum and the agreement into which this Addendum is incorporated are Customer’s complete instructions to Adaptavist for the processing of Personal Data.

8.1.2 Obtain authorisation from the Data Controller with regards to engaging a sub-processor and shall be responsible for the compliance of the sub-processor with all applicable Data Protection Law, as further set out in the terms of Clause “Sub-processors” below.

8.1.3 Enable and contribute to compliance audits conducted by the Data Controller in accordance with Clause "Audits" of this Addendum.

8.1.4 Notify the Data Controller of any suspected Personal Data Breach without undue delay.

8.1.5 Keep detailed, accurate and up-to-date written records regarding any processing of the Customer Personal Data in accordance with European Data Protection Law(s) and shall provide them to You promptly upon request.

8.1.6 Notify promptly the Data Controller if, in its opinion, the Data Controller's instructions do not comply with the Data Protection Laws.

8.1.7 Maintain the confidentiality of the Personal Data; the Data Processor will ensure that all of its employees and other persons who process Personal Data are informed of the confidential nature of the Personal Data and are bound by written or statutory confidentiality obligations and use restrictions in respect of the Personal Data.

9 Sub-processors

9.1 Consent to Sub-processors:

9.1.1 Customer acknowledges and agrees that Adaptavist may engage as Sub-processors its Affiliates and third party companies worldwide in connection with the provision of the Hosted Services.

9.2 Engagement of Sub-processors:

9.2.1 Adaptavist shall enter into a written agreement with each Sub-processor containing data protection obligations no less protective than those in this Data Processing Addendum or as may otherwise be required by applicable Data Protection Laws. Adaptavist shall remain fully liable to Customer for the performance of any Sub-processor’s data protection obligations in relation to the provision of the Hosted Services.

9.2.1.1 Customer acknowledges and agrees that Adaptavist may continue to use Sub-processors who are already engaged by Adaptavist as at the date of this Agreement.

9.3 Use of Sub-processors:

9.3.1 Upon Customer’s request or as otherwise required by the applicable Data Protection Laws, Adaptavist shall make available information about Sub-processors who, to Adaptavist’s actual knowledge, will process Personal Data, including their functions relevant to the provision of Adaptavist Hosted Services and locations. This information may be made available by Adaptavist online at a URL provided by Adaptavist to Customer and may be updated by Adaptavist from time to time.

9.4 New sub-processors and Opportunity to Object:

9.4.1 Adaptavist will use commercially reasonable endeavours to inform You in a timely manner of recent and/or upcoming changes of Sub-processors by periodically updating this Addendum or Customer portal or account information to provide details of Sub-processors involved in the processing of Personal Data and who are engaged during the term of the Agreement.

9.4.2 If Customer can reasonably show that the use of a specific Sub-processor will have a material adverse effect on Adaptavist’s ability to comply with applicable Data Protection Laws, then Customer must promptly notify Adaptavist in writing of its reasonable basis for objection to the use of a specific Sub-processor.

9.4.3 Upon receipt of Customer’s written objection, if the following conditions apply: a) Customer has a termination right under applicable Data Protection Laws, and b) Customer has provided prompt written notice under this Clause, then Customer may terminate the Agreement only with respect to those Hosted Services that cannot be provided by Adaptavist without the use of the specific Sub-processor.

9.4.3.1 Unless prohibited by applicable Data Protection Laws, in the event of such early termination by Customer, Adaptavist can retain or require payment for Hosted Services through the end of Customer’s current contract term for the terminated Hosted Services.

10 Audits

10.1 Where required in compliance with Article 28(3)(h) of the GDPR, You may be permitted to carry out audits and inspections of the systems and processes used directly in the processing of Your data to ensure compliance with the terms of this Addendum.

10.2 Such audits or inspections shall occur no more frequently than once a year. In addition to this, audits shall be conducted during business hours by an independent third party and with reasonable notice in advance to Adaptavist.

10.3 At no point shall any audit require Adaptavist to disclose to You or any third-party representative of Yours any access to:

10.3.1 Adaptavist client confidential information, or require Adaptavist to breach any confidentiality obligations it has in place;

10.3.2 Adaptavist trade secrets or confidential intellectual property (such as confidential algorithms, code, data, or business information);

10.3.3 Internal financial information, other than that which is already in the public domain;

10.3.4 Any information which may in our reasonable opinion be deemed to compromise the security of our premises or systems.

11 Costs

11.1 In the event that Customer requests Processor to provide assistance which goes beyond the Agreement terms relating to the Hosted Services or terms agreed in this Addendum, then the parties agree that Adaptavist may charge Customer for any costs beyond the agreed upon fees in the Agreement to the extent it is not commercially reasonable for Adaptavist to provide such assistance without charge (considering relevant factors such as volume of requests, complexity of The Customer's request or instructions, and timescale requested). This shall include, without limitation, costs incurred by Adaptavist in executing Customer's Instructions relating to the erasure, additional storage and/or retention of Customer's Personal Data, compliance with any subject access request received by Customer, and audits.

12 Term, Termination and Updates

12.1 This Addendum shall be in force until the latter of either the termination of the Agreement and/or the Terms, or until such point as the cessation of the processing of Your Personal Data has occurred.

12.2 Upon termination of the Addendum Adaptavist shall return or erase all Personal Data from their systems, retaining only such data as may be necessary to demonstrate compliance with any applicable laws and regulations or as reasonably may be required for archiving purposes. Any such retained data shall be subject to provisions no less onerous than those of this Addendum.

12.3 From time to time and at our sole discretion, Adaptavist may publish updates or amendments or additions to this Addendum on its website with or without notice to you (the “Published DPA Updates”). “Necessary Published DPA Updates” means those Published DPA Updates which (1) do not materially reduce the level of data privacy protection set out in this Addendum, and (2) are: (i) necessary or required for continued effective execution of Adaptavist’s obligations under this Addendum, commercial operation or provision of the applicable Products, including to reflect changes over time for underlying technical architecture, design and operational decisions relating to the Products; or (ii) mandatorily required under Data Protection Law, including notifying company structure changes.

12.3.1 You hereby give your written consent that through your continued use of the Products under the terms of the Agreement, you agree to the terms of Necessary Published DPA Updates, and that these shall supercede terms of this Addendum.

13 Contact

Adaptavist is committed to working with You to ensure compliance with all applicable laws and regulations concerning the protection of Personal Data. Should you wish to exercise any of the rights outlined in this Addendum, or have further queries with regards to this Addendum, please contact us at contractuals@adaptavist.com.

DPA Annex- Adaptavist Entities

Adaptavist Entities

1. Adaptavist Group Limited

2. Clever Consultants Limited

3. Adaptavist UK Services Limited

4. Adaptavist Ventures Limited

5. Adaptavist Inc.

6. Go 2 Group LLC

7. Adaptavist Canada Limited

8. ASPV Apps Limited

9. AVSTP Limited

10. AVSTC Limited

11. ARUK Limited

12. Go 2 Group Asia

13. Adaptavist Estonia

14. Adaptavist GmBh

15. Adaptavist Malaysia

16. Adaptavist Pty Ltd

17. Salenda SL

DPA Annex- Security

Annex- Security

1. General

a. Adaptavist employs security measures based on ISO 27001 to protect your information from access by unauthorised persons and against unlawful processing, accidental loss, destruction, damage and unauthorised alteration.

b. Whilst Adaptavist cannot warrant that loss, misuse or alteration to data will never occur, we shall take many precautions to prevent such occurrences and have measures in place to detect any such breaches of security.

2. Internal Security Policies

a. Adaptavist undertakes an analysis of the risks presented by our processing and maintains a policy to assess the appropriate level of security commensurate with the level of risk.

b. Adaptavist implements extensive information security policies, including those covering business continuity and incident management, which are updated and tested at least annually and more often if business context requires it.

3. Sensitive Data

a. Any particularly sensitive information, such as a credit card number used to purchase our products and services is encrypted using payments' systems and Adaptavist staff never have access to your credit card or debit card details.

4. Data Location and Encryption

a. Data is stored in the following AWS Regions us-west-2, eu-west-1, us-east-1 & eu-west-2.

b. We encrypt sensitive data at rest in our database using AES-256.

5. Access Control and Disclosure

a. We use physical, electronic, and procedural safeguards to protect any personally identifiable data stored on our computers. Adaptavist implements the least privileged principle, whereby only authorised employees who have a business need may access the information you provide us. Adaptavist employees comply with a system password policy to ensure protection of data and limit access.

b. Only Adaptavist Developers or Support Engineers have access to the hosting platforms. They only have access to the application data to perform system, website, or application support.

c. HTTPS and SSH are the only protocols available to our cloud platform. SSH access is limited to Adaptavist Support Engineers. SSH access is restricted to known trusted internal networks with key-based authentication.

d. Our platform is micro-service based which is also layered into public and internal/private. Each one of these services is responsible for its own data and provides its own access controls. We will also ship and monitor logs from these micro-services which we alert if abnormal behaviour is detected.

6. Backups

a. Data stored in our platforms for all cloud Apps are backed up every 4 hours with incremental backups and daily backups of the entire platform are taken every 24 hours.

7. Deletion

a. How long Adaptavist keeps information we collect about You depends on the type of information. After such time, Shall either delete or anonymise your information or, if this is not possible (for example, because the information has been stored in backup archives), then Adaptavist shall securely store your information and isolate it from any further use until deletion is possible.

DPA Annex - Standard Contractual Clauses

Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to processor transfers)

Data Transfer Agreement

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

Adaptavist (hereinafter the "data importer") and

Customer (hereinafter the "data exporter") 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 Annex 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:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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:

(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.

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):

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):

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):

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Categories of data

The personal data transferred concern the following categories of data (please specify):

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

DATA EXPORTER

Name: …

Authorised Signature …

DATA IMPORTER

Name: …

Authorised Signature …

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 organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

ILLUSTRATIVE INDEMNIFICATION CLAUSE (OPTIONAL)

Liability

The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.

Indemnification is contingent upon:

(a) the data exporter promptly notifying the data importer of a claim; and

(b) the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim ( 4 ).

( 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.

( 4 ) Paragraph on liabilities is optional.