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GDPR - Data Processing Agreement Addendum


Last revised: August 25, 2020

Effective date: August 28, 2020

ThisGDPR Data Processing Agreement Addendum (“DPA”) is made and entered into as of the _____ day __________ of 2020, (the “Effective Date”) by and between ____________(“Licensee”) and Adaptiv.Me Group, Inc. (“Adaptiv.Me”) and forms part of the Terms of Service available athttps://Adaptiv.Me/terms. The purpose of this DPA is to reflect the parties’ agreement with regard to the processing of personal data in accordance with the requirements of Data Protection Legislation as defined below. This DPA consists of (a) the main body of the DPA; (b) Attachment 1 (Subject Matter and Details of the Data Processing); (c) Attachment 2 (Security Measures) and (d) Attachment 3 (the Standard Contractual Clauses).

Without limiting Adaptiv.Me’s obligations under the Terms of Service, to the extent that Licensee Processes EU Personal Data (as defined below) and to the extent that such Processing is subject to the GDPR, Adaptiv.Me will comply with the following additional provisions. As used herein, “Agreement” means, collectively, the Terms of Service, this DPA, and any other agreements entered into by the parties with respect to Licensee’s use of the Adaptiv Platform.

1. Definitions. Capitalized terms used in this section will have the meaning set forth below.

2. “Data Breach” means any security breach, or any similar or equivalent comprise which leads to the unintended, accidental, unauthorized or unlawful loss, disclosure of, or access to, EU Personal Data by any Processor.

3. “Data Controller” has the meaning given to it under the GDPR.

4. “Data Processor” has the meaning given to it under the GDPR.

5. “Data Protection Laws” means any data protection, privacy or similar laws or regulations anywhere in the world relating to the Processing or other use of personal data, including the GDPR, that apply in relation to any Personal Data processed in connection with this Agreement.

6. “EU Data Subject” will have the meaning given to “Data Subject” under the GDPR.

7. “EU Personal Data” will have the meaning given to “Personal Data” under the GDPR.

8. “GDPR” means 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with regard to the processing of personal data and on the free movement of such data, and to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom.

9. “Licensee Personal Data” means EU Personal Data that is Processed by Adaptiv.Me or any Adaptiv.Me employees, agents or personnel in performing its obligations under this DPA or which is otherwise made available directly or indirectly to Adaptiv.Me or its employees, agents or personnel by Licensee.

10. “Processing” will have the meaning given to it under the GDPR.

11. “Processor Security Obligations” will mean Article 32 of the GDPR.

12. “Standard Contractual Clauses” mean the standard data protection clauses for the transfer of EU Personal Data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR, a copy of which are attached as Attachment 3.

13.  “Supervisory Authority” has the meaning given to it under the GDPR.

14. “Transfer Solution” means the Standard Contractual Clauses or another solution that enables the lawful transfer of EU Personal Data to a third country in accordance with Article 45 or 46 of the GDPR.

15.  Compliance. Adaptiv.Me will comply with its obligations under applicable Data Protection Laws. Adaptiv.Me will implement measures designed to require that all Adaptiv.Me employees, subcontractors and other personnel who carry out any Processing of Licensee Personal Data under or in connection with this Agreement will comply with obligations imposed on Adaptiv.Me under this section. Adaptiv.Me will not intentionally perform any act that puts Licensee in breach of its obligations under applicable Data Protection Laws, and Adaptiv.Me will notify Licensee if, in Adaptiv.Me’s opinion, performance of a Licensee instruction would result in breach of applicable Data Protection Laws. Nothing in this Agreement will be deemed to prevent either party from taking the steps it reasonably deems necessary to comply with applicable Data Protection Laws.

16. General. The Parties acknowledge that: (i) Licensee alone will determine the purposes for which and the manner in which Licensee Personal Data are, or are to be, Processed in the performance of this Agreement; (ii) Licensee will be either the Data Controller or a Data Processor in respect of all Licensee Personal Data; (iii) Adaptiv.Me will be either the Data Processor or a Subprocessor in respect of Licensee Personal Data; and (iv) Adaptiv.Me will only Process Licensee Personal Data for the limited purpose of performing its obligations under this Agreement or as may be necessary to comply with applicable laws.

17. Requests. As soon as reasonably practicable or as specified below in this section, Adaptiv.Me will comply with any written request by Licensee to: (i) correct or delete inaccurate Licensee Personal Data; (ii) provide Licensee with a copy of Licensee Personal Data relating to an EU Data Subject in the possession or control of Adaptiv.Me; (iii) provide Licensee with information about the Processing of Licensee Personal Data including information (or a report in sufficient detail if requested by Licensee, within thirty (30) days of such request) about the technical and organizational security measures that it uses to comply with the Processor Security Obligations or information about how its Processing of Licensee Personal Data complies with applicable Data Protection Laws; (iv) within ten (10) days of such request or notice (as applicable) from Licensee, provide Licenssee with reasonable assistance in respect of any request or notice, or any anticipated request or notice, by or on behalf of any EU Data Subject or by a Supervisory Authority in respect of Licensee Personal Data; (v) delete or return to Licensee the Licensee Personal Data after the end of the provision of the services related to the Processing, unless otherwise required by applicable law; and (vi) otherwise provide reasonable assistance to Licensee as necessary to allow Licensee to comply with applicable Data Protection Laws.

18. Use. Adaptiv.Me will not, without Licensee’s prior written consent use Licensee Personal Data for purposes other than those set forth in the Agreement or as required by applicable law.

19. Transfer.

(a) Adaptiv.Me may, subject to Section 19(b), store and Process Licensee Personal Data anywhere Adaptiv.Me or its Subprocessors maintain facilities.

(b) Transfers of Data Out of the EEA.

a. If the storage and/or Processing of Licensee Personal Data (as set out in Section 19(a) involves transfers of Licensee Personal Data out of the EEA or Switzerland, and the GDPR applies to the transfers of such data (“Transferred Personal Data”), Adaptiv.Me will make such transfers in accordance with a Transfer Solution, and make information available to Licensee about such Transfer Solution upon request.

b. In respect of Transferred Personal Data, Licensee agrees that if under the GDPR Adaptiv.Me reasonably requires Licensee to enter into Standard Contractual Clauses or use another Transfer Solution offered by Adaptiv.Me, and reasonably requests that Licensee take any action (which may include execution of documents) required to give full effect to such solution, Licensee will do so.

(c) If Licensee has entered into Standard Contractual Clauses as described in Section 19(b), Adaptiv.Me will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Licensee Personal Data, and any notifications relating to any such disclosures, in accordance with such Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, Licensee and Adaptiv.Me agree that (i) Licensee will act as the data exporter on Licensee’s own behalf (ii) Adaptiv.Me or its relevant Affiliate will act on its own behalf and/or on behalf of Adaptiv.Me’s Affiliates as the data importers.

20. Subprocessors.
(a) Adaptiv.Me will engage subcontractors only pursuant to Licensee’s general or specific authorization. Licensee specifically authorizes the engagement of Adaptiv.Me’s parent, subsidiaries, and other companies under common control with Adaptiv.Me as subcontractors. Licensee generally authorizes the Adaptiv.Me’s engagement of any other third parties as subcontractors. When engaging any subcontractor, Adaptiv.Me will enter into a written contract with such subcontractor containing data protection obligations not less protective than those in this DPA, to the extent applicable to the nature of the services provided by such subcontractor. Where Adaptiv.Me engages a subcontractor pursuant to Licensee’s general authorization, Adaptiv.Me will, at least 30 days before the new subcontractor Processes any Licensee Personal Data, notify Licensee of the engagement. Licensee may object to such subcontractor by providing written notice to Adaptiv.Me within ten (10) business days of being informed of the engagement. In the event Licensee objects to a new subcontractor, Licensee and Adaptiv.Me will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Licensee may, as its sole and exclusive remedy, terminate the agreement impacted by the subcontractor by providing written notice to Adaptiv.Me. Licensee consents to Adaptiv.Me’s transfer of Licensee Personal Data to subcontractors as described in this DPA and agrees that Licensee’s consent satisfies the requirements of the Standard Contractual Clauses between Licensee and Adaptiv.Me under Clauses 5(h) and 11.1 of the Standard Contractual Clauses.  

(b) Adaptiv.Me’s list of subcontractors is currently available athttps://Adaptiv.Me/subprocessors, and such list may be updated by Adaptiv.Me from time to time. The Standard Contractual Clauses will apply to Licensee Personal Data that is transferred outside the EEA either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data. The Standard Contractual Clauses will not apply to Licensee Personal Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses will not apply if Licensee has adopted an alternative recognized compliance standard for the lawful transfer of personal data outside the EEA.

(c) Upon Licensee’s written request Adaptiv.Me shall allow Licensee to examine the data protection provisions of agreements between Adaptiv.Me and its subcontractors that access Licensee Personal Data; provided that such agreements shall remain Adaptiv.Me Confidential Information.  Licensee agrees that this section satisfies the requirements of the Standard Contractual Clauses between Licensee and Licensee Personal Data under Clause 5(j) of the Standard Contractual Clauses.


21. Complaints. Adaptiv.Me will promptly notify Licensee if any complaints are received by Adaptiv.Me from third parties about the Processing of Licensee Personal Data, and Adaptiv.Me will not make any admissions, settle or take any action which may be prejudicial to the defense or settlement of any such complaint and will provide to Licensee such reasonable assistance, at Licensee’s cost, as it may require in connection with such complaint. If Adaptiv.Me acquires, on behalf of and independently from Licensee, any EU Personal Data from EU Data Subjects as part of the Services, Adaptiv.Me will give such individuals a data protection notice describing the intended use of such EU Personal Data, in a form provided or approved by Licensee. Without prejudice to its other obligations under this Agreement, if Adaptiv.Me becomes aware of any unauthorized, unlawful or dishonest conduct or activities or any breach of this section (including the occurrence of any Data Breach), Adaptiv.Me will promptly notify Licensee and provide all relevant information reasonably required by Licensee about such conduct, activities and/or breaches.

22. Adaptiv.Me Security Obligations. Adaptiv.Me acknowledges that it is obliged to comply with the Processor Security Obligations (including management of on-going compliance and effective security management) in respect of Licensee Personal Data and, in particular, that it will comply with the following obligations: (i) take appropriate technical and organizational security measures to safeguard against any unauthorized and unlawful Processing of Licensee Personal Data and against any accidental loss or destruction of, or damage to, EU Personal Data; (ii) only Process Licensee Personal Data in accordance with written instructions given by Licensee; (iii) take reasonable steps to ensure the reliability of those Adaptiv.Me employees, agents or other personnel that have access to Licensee Personal Data; and (iv) ensure that all Adaptiv.Me employees, agents or other personnel involved in Processing Licensee Personal Data have undergone reasonably adequate training in the care and handling of EU Personal Data.

If Adaptiv.Me becomes aware of an information security incident affecting Adaptiv.Me’s systems, Adaptiv.Me will: (a) notify Licensee of the incident without undue delay after becoming aware of the incident; and (b) take reasonable steps to identify the cause of such incident, minimise harm and prevent a recurrence.  Licensee is solely responsible  for complying with incident notification laws applicable to Licensee and fulfilling any third party notification obligations related to any information security incident(s). Adaptiv.Me’s notification of or response to an information security incident under this section will not be construed as an acknowledgement by Adaptiv.Me of any fault or liability with respect to the Information Security Incident. Licensee agrees that the provisions of this section satisfy the requirements of the Standard Contractual Clauses between Licensee and Adaptiv.Me under Clause 5(d)(2) of the Standard Contractual Clauses.  


23. Audit. If a relevant data protection Supervisory Authority is required by law or regulation to audit the facilities from which Adaptiv.Me Processes EU Personal Data in order to ascertain and/or monitor compliance with Data Protection Requirements, then Adaptiv.Me will cooperate with the audit at Licensee’s expense. The audit obligations described in this section are made at Licensee’s request to ensure regularity and consistency in the audit process and shall apply, without limitation, to Processing of Licensee Personal Data by Adaptiv.Me for purposes of the Standard Contractual Clauses between Licensee and Adaptiv.Me in full satisfaction of Licensee’s rights as the data exporter under Clauses 5(f) and 12.2 of the Standard Contractual Clauses to conduct an audit of the data processing facilities used by Adaptiv.Me. To maintain such regularity and consistency, changes or additions to these audit obligations must be made pursuant to Standard Contractual Clauses. Adaptiv.Me is an intended third-party beneficiary of this section.

24. Liability.  
(a) The total combined liability of either party and its affiliates towards the other party and its affiliates, whether in contract, tort or any other theory of liability, under or in connection with this DPA, and the Standard Contractual Clauses if entered into as described in Section 19 (Transfer), combined, will be limited to limitations on liability or other liability caps agreed to by the parties in the DPA, subject to Section 24(b).

(b) Nothing in this section will affect any party’s liability to data subjects under the third-party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by the GDPR.


ATTACHMENT 1

Subject Matter and Details of the Data Processing

Subject Matter: Adaptiv.Me’s provision of the services to Licensee.

Duration of the Processing: The term of the DPA plus the period until Adaptiv.Me deletes all Licensee Personal Data Processed on behalf of Licensee in accordance with the DPA.

Nature and Purpose of the Processing:  Adaptiv.Me will Process Licensee Personal Data for the purposes of providing the services to Licensee in accordance with the DPA.

Categories of Data: Data relating to individuals provided to Adaptiv.Me in connection with the services, by (or at the direction of) the Licensee or individuals using Adaptiv.Me’s platform.


ATTACHMENT 2

Security Measures
Adaptiv.Me will implement and maintain the security measures set out in this Attachment 2. Adaptiv.Me may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

Adaptiv.Me has implemented security measures including, but not limited to:

1. In the software development lifecycle, a code review process for all production code changes, prior to release; code analysis tools to detect security and vulnerability defects; automated and manual vulnerability testing including OWASP top ten testing; continuous monitoring; and automatic network vulnerability detection software to catch vulnerabilities in real time.

2. No direct access to virtual machines for tenants, nor the ability for Adaptiv.Me to host client virtual machine images.

3. Encryption of all data sent across public networks except as specifically requested by our users, and use of SSH for replication over public networks.

4. Reliance on Amazon Web Services for physical security and physical handling of servers, to which Adaptiv.Me employees do not have physical access.

5. An annual internal audit that includes identifying and prioritizing security, privacy, legal, and business continuity risks, as well as a review of our business processes and governance, conducted by company executives representing legal, IT security, IT operations and business continuity planning concerns.

6. Security incident response process defining procedures for notifying customers if an incident may have impacted their data.

7. Documented procedures for authenticating customer access.

8. Logical segmentation to ensure customers can only access their own data; there are no scenarios where customers are given general systems access beyond specifically granted access to their data. In addition, for customers on dedicated Adaptiv.Me clusters, physical segmentation from other customer data as well.

9. Classifying all data provided by our customers and their users as secure by default; users are given tools for implementing their own classification standards and enforcing appropriate levels of access controls via our Privacy Rules functionality.

10. Procedures governing use of production data, enforced by controls including auditing and technical safeguards; use of production data on a strictly as-needed basis for diagnosing issues as requested by clients; and policies governing the circumstances in which production data can be used in this manner.

11. Company policies in place around handling of employee laptops, including HR termination processes involving revoking all access and collecting all assets within 24 hours.

12. Training for all Adaptiv.Me employees around their job duties and the security obligations inherent in those roles; and mandatory two-factor authentication for all Adaptiv.Me employees.

13. Procedures to identify, assess and mitigate any reasonably foreseeable internal and external risks to the security, confidentiality, and/or integrity of systems or files containing Personal Data and evaluate and improve safeguards as necessary.


ATTACHMENT 3

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

Name of the data exporting organisation:

Licensee operating in the countries which comprise the European Economic Area and/or Switzerland and/or in any other country which accepts the EU Model Clauses, which are data controllers and transfer personal data to the data importer. As of the date Licensee signs these Clauses such affiliates are those listed in Appendix 3, each a“data exporter”.

Appendix 3 may be amended from time to time, in particular if other affiliates of Licensee which are data controllers wish to enter into these Clauses. If other Licensee affiliates wish to enter into these Clauses with the data importer, Licensee shall notify the data importer in writing and upon receipt of such notice, the relevant subsidiary shall be deemed to have signed these Clauses with the data importer.

Licensee executes these Clauses on behalf of each data exporter and each data exporter thereby enters into a separate agreement with the data importer, which shall in each case be governed by the law of the Member State in which the relevant data exporter is established.

and

Name of the data importing organisation:Adaptiv.Me Group, Inc.

Address:
Tel.:

(the dataimporter)
each aparty; togetherthe 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;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘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 subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.  Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

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;

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;

that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

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, authorized 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;

that it will ensure compliance with the security measures;

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;

to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

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 subprocessing 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;

that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

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 subprocessing, 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under 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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in 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 subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity.  The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2.  In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, as set out in Appendix 3 below.

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

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter.  Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses.  Where the subprocessor fails to 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 subprocessor's obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law.  Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing 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, as set out in Appendix 3 below.

4. The data exporter shall keep a list of subprocessing 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 subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred.  In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

On behalf of the data exporter

This document is deemed to be signed by each data exporter upon Licensee signing below on behalf of the relevant 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]


APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

The details of the processing are set out in Attachment 1 of the Data Protection Addendum to which these Clauses are appended.


APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses

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):

The security measures are set out in Attachment 2 of the Data Protection Addendum to which these Clauses are appended.


APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses

List of the Licensee subsidiaries that are data exporters as at the date that Licensee signs these Clauses

[Please reach out tolegal@Adaptiv.Me if you wish to fill out this Appendix]

* Although Licensee is entering into these model clauses on behalf of each data exporter, if the supervisory authority of a data exporter requires the relevant data exporter to sign the model clauses, then the data exporter shall sign here.

[Insert details of Licensee Affiliates that are exporting personal data.]