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Data Protection Addendum

Brightback Inc.
Data Protection Addendum
Date of Last Revision: March 24, 2020

The customer agreeing to these terms (“Customer”) has entered into an agreement with Brightback Inc. and certain of its Affiliates (as applicable, “Brightback”) under which Brightback has agreed to provide services to Customer (as amended from time to time, the "Agreement").

This Data Protection Addendum, including its appendices (the “Addendum”) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement.

  1. Definitions

For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalised terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.

  1. 1.1.“Addendum Effective Date” means, as applicable, (a) 25 May 2018, if the parties agreed to this Addendum prior to or on such date; or (b) the date on which the parties agreed to this Addendum, if such date is after 25 May 2018.
  2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
  3. “Audit Reports” has the meaning given in Section 5.4.4.
  4. “Customer Personal Data” means any personal data contained within the data provided to or accessed by Brightback by or on behalf of Customer or Customer end users in connection with the Services.
  5. “EEA” means the European Economic Area and the United Kingdom.
  6. “EU” means the European Union.
  7. “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.
  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 repealing Directive 95/46/EC.
  9. “Information Security Incident” means a breach of Brightback’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data in Brightback’s possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
  10. 1.10.“Model Contract Clauses” or “MCCs” mean the standard data protection clauses for the transfer of 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.
  11. 1.11.“Security Documentation” means all documents and information made available by Brightback under Section 5.4.1 (Reviews of Security Documentation).
  12. 1.12.“Security Measures” has the meaning given in Section 5.1.1 (Brightback’s Security Measures).
  13. 1.13.“Services” means the services and/or products to be provided by Brightback to Customer under the Agreement.
  14. 1.14.Subprocessors” means third parties authorised under this Addendum to process Customer Personal Data in relation to the Services.
  15. 1.15.“Term” means the period from the Addendum Effective Date until the end of Brightback’s provision of the Services.
  16. 1.16.“Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
  17. 1.17.“Transfer Solution” means the Model Contract Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
  18. 1.18.The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses.

Duration of Addendum

This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Brightback’s deletion of all Customer Personal Data as described in this Addendum.

  1. Processing of Data
    1. Roles and Regulatory Compliance; Authorization.
      1. 3.1.1.Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
        1. the subject matter and details of the processing are described in Appendix 1;
        2. Brightback is a processor of that Customer Personal Data under the European Data Protection Legislation;
        3. Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
        4. each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
      2. 3.1.2.Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Brightback that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Brightback as another processor, have been authorised by the relevant controller.
    2. Scope of Processing.
      1. 3.2.1.Customer’s Instructions. By entering into this Addendum, Customer instructs Brightback to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorised by the Agreement, including this Addendum; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Brightback as constituting instructions for purposes of this Addendum.
      2. 3.2.2.Brightback’s Compliance with Instructions. Brightback will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless European Data Protection Legislation to which Brightback is subject requires other processing of Customer Personal Data by Brightback, in which case Brightback will notify Customer (unless that law prohibits Brightback from doing so on important grounds of public interest).
  2. Data Deletion
    1. Deletion on Termination. On expiry of the Term, Customer instructs Brightback to delete all Customer Personal Data (including existing copies) from Brightback’s systems in accordance with applicable law as soon as reasonably practicable, unless applicable law requires otherwise.
  3. Data Security
    1. 5.1.Brightback’s Security Measures, Controls and Assistance.
      1. 5.1.1.Brightback’s Security Measures. Brightback will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Personal Data as described in Appendix 2 (the "Security Measures"). Brightback may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
      2. 5.1.2.Security Compliance by Brightback Staff. Brightback will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
      3. 5.1.3.Brightback’s Security Assistance. Brightback will (taking into account the nature of the processing of Customer Personal Data and the information available to Brightback) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:
        1. implementing and maintaining the Security Measures in accordance with Section 5.1.1 (Brightback’s Security Measures);
        2. complying with the terms of Section 5.2 (Information Security Incidents); and
        3. providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Addendum.
    2. Information Security Incidents
      1. 5.2.1.Information Security Incident Notification. If Brightback becomes aware of an Information Security Incident, Brightback will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimise harm and prevent a recurrence.
      2. 5.2.2.Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Brightback recommends Customer take to address the Information Security Incident.
      3. 5.2.3.Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).
      4. 5.2.4.No Acknowledgement of Fault by Brightback. Brightback’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by Brightback of any fault or liability with respect to the Information Security Incident.
    3. Customer’s Security Responsibilities and Assessment.
      1. 5.3.1.Customer’s Security Responsibilities. Customer agrees that, without prejudice to Brightback’s obligations under Section 5.1 (Brightback’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):
        1. Customer is solely responsible for its use of the Services, including:
          1. making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
          2. securing the account authentication credentials, systems and devices Customer uses to access the Services;
          3. securing Customer’s systems and devices Brightback uses to provide the Services; and
          4. backing up its Customer Personal Data; and
        2. Brightback has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of Brightback’s and its Subprocessors’ systems (for example, offline or on-premises storage).
      2. 5.3.2.Customer’s Security Assessment.
        1. Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and Brightback’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation.
        2. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Brightback as set out in Section 5.1.1 (Brightback’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.
    4. Reviews and Audits of Compliance
      1. 5.4.1.Customer may audit Brightback’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). Brightback will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.
      2. 5.4.2.If a third party is to conduct the audit, Brightback may object to the auditor if the auditor is, in Brightback’s reasonable opinion, not suitably qualified or independent, a competitor of Brightback, or otherwise manifestly unsuitable. Such objection by Brightback will require Customer to appoint another auditor or conduct the audit itself.
      3. 5.4.3.To request an audit, Customer must submit a detailed proposed audit plan to support@brightback.com at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Brightback will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Brightback security, privacy, employment or other relevant policies). Brightback will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require Brightback to breach any duties of confidentiality.
      4. 5.4.4.If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and Brightback confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
      5. 5.4.5.The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Brightback’s health and safety or other relevant policies, and may not unreasonably interfere with Brightback business activities.
      6. 5.4.6.Customer will promptly notify Brightback of any non-compliance discovered during the course of an audit and provide Brightback any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are Confidential Information of the parties under the terms of the Agreement.
      7. 5.4.7.Any audits are at Customer’s expense. Customer shall reimburse Brightback for any time expended by Brightback or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at Brightback’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
      8. 5.4.8.The parties agree that this Section 5.4 shall satisfy Brightback’s obligations under the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).
  4. Impact Assessments and Consultations

Brightback will (taking into account the nature of the processing and the information available to Brightback) reasonably assist Customer in complying with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:

    1. 6.1.Making available for review copies of the Audit Reports or other documentation describing relevant aspects of Brightback’s information security program and the security measures applied in connection therewith; and
    2. 6.2.providing the information contained in the Agreement including this Addendum.
  1. Data Subject Rights
    1. 7.1.Customer’s Responsibility for Requests. During the Term, if Brightback receives any request from a data subject in relation to Customer Personal Data, Brightback will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.
    2. 7.2.Brightback’s Data Subject Request Assistance. Brightback will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR. Customer shall reimburse Brightback for any such assistance beyond providing self-service features included as part of the Services at Brightback’s then-current professional services rates, which shall be made available to Customer upon request.
  2. Data Transfers
    1. Data Storage and Processing Facilities. Brightback may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere Brightback or its Subprocessors maintains facilities.
    2. Transfers of Data Out of the EEA.
      1. 8.2.1.Brightback’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), Brightback will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.
      2. 8.2.2.Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation Brightback reasonably requires Customer to enter into Model Contract Clauses or use another Transfer Solution offered by Brightback, and reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.
    3. 8.3.Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), Brightback will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Model Contract Clauses. [For the purposes of the Model Contract Clauses, Customer and Brightback agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) Brightback or its relevant Affiliate will act on its own behalf and/or on behalf of Brightback’s Affiliates as the data importers.
  3. Subprocessors
    1. 9.1.Consent to Subprocessor Engagement. Customer specifically authorises the engagement of Brightback’s Affiliates as Subprocessors. In addition, Customer generally authorises the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Model Contract Clauses as described in Section 9.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by Brightback of the processing of Customer Personal Data if such consent is required under the Model Contract Clauses.
    2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at https://help.brightback.com/ar... (as may be updated by Brightback from time to time in accordance with this Addendum).
    3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, Brightback will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. Brightback shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
    4. 9.4.Opportunity to Object to Subprocessor Changes.

When any new Third Party Subprocessor is engaged during the Term, Brightback will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).

Customer may object to any new Third Party Subprocessor by providing written notice to Brightback within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. In the event Customer objects to a new Third Party Subprocessor, Customer and Brightback 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, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Brightback.

  1. Processing Records
    1. 10.1.Brightback’s Processing Records. Customer acknowledges that Brightback is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Brightback is acting and, where applicable, of such processor’s or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Brightback, and will ensure that all information provided is kept accurate and up-to-date.
  2. Liability
    1. 11.1.Liability Cap. 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 the Agreement, this Addendum, and the Model Contract Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
    2. 11.2.Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Model Contract Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.
  3. California Consumer Privacy Act
    1. 12.1.For purposes of this Section 12, the terms “business,” “commercial purpose,” “sell” and “service provider” shall have the respective meanings given thereto in the California Consumer Privacy Act of 2018 (as amended from time to time, the “CCPA”), and “personal information” shall mean Customer Personal Data that constitutes personal information regulated by the CCPA.
    2. 12.2.It is the parties’ intent that with respect to any personal information, Brightback is Customer’s service provider. Brightback shall not (a) sell any personal information; (b) retain, use or disclose any personal information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the personal information for a commercial purpose other than the provision of the Services; or (c) retain, use or disclose the personal information outside of the direct business relationship between Brightback and Customer. Brightback hereby certifies that it understands its obligations under this Section 12 and will comply with them.
    3. 12.3.The parties acknowledge that Brightback’s collection, retention, use and disclosure of personal information as authorized by Customer’s instructions described in Section 3.2.1 of the Addendum (Customer’s Instructions) are integral to Customer’s provision of the Services and the business relationship between the parties. This Section 12 shall not be construed to limit Brightback’s processing of personal information for purposes for which service providers are permitted to process personal information under the CCPA or any regulations issued pursuant thereto.
  4. Analytics

Customer acknowledges and agrees that Brightback may create and derive from processing related to the Services anonymised and/or aggregated data that does not identify Customer or any natural person, and use, publicise or share with third parties such data to improve Brightback’s products and services and for its other legitimate business purposes.

  1. Notices

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Brightback to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to Brightback’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

  1. Effect of These Terms

Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.

This Addendum will be effective as of: _____________________(the “Addendum Effective Date”)

Brightback Inc. Company: ______________________________

5 3rd Street , Suite 600 Address: ______________________________

San Francisco, CA 94103 ______________________________

______________________________

By: ________________________________ By: ________________________________

Name: ________________________________ Name: ________________________________

Title: ________________________________ Title: ________________________________

Appendix 1

Subject Matter and Details of the Data Processing

Subject Matter

Brightback’s provision of the Services to Customer.

Duration of the Processing

The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by Brightback in accordance with the Addendum.

Nature and Purpose of the Processing

Brightback will process Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Addendum.

Categories of Data

Data relating to individuals provided to Brightback in connection with the Services, by (or at the direction of) Customer.

Data Subjects

Data subjects include the individuals about whom Brightback Processes data in connection with the Services.

Appendix 2

Security Measures

As from the Addendum Effective Date, Brightback will implement and maintain the Security Measures set out in this Appendix 2. Brightback 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.

Appendix 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:

Customer and/or its affiliates 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 Customer 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 Customer which are data controllers wish to enter into these Clauses. If other Customer affiliates wish to enter into these Clauses with the data importer, Customer 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.

Customer 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: Brightback Inc.

Address: 5 3rd Street, Suite 600, San Francisco, CA 94103

Tel.: 650-796-2897; e-mail: support@brightback.com

Other information needed to identify the organization:

(the data importer)

each a party; together the parties,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a)personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(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:

  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, 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;
  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 subprocessor pursuant to Clause 5(b) and Clause (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 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;
  9. 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
  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 organisational 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. ii.any accidental or unauthorised access, and
    3. iii.any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. 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;
  6. 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;
  7. 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;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. 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.

  1. 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:
    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 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 that 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 Customer 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): Guy Marion

Position: CEO

Address: 5 3rd Street, Suite 600. San Francisco, CA 94103

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 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:

All subsidiaries of Customer 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 which transfer personal data to the data importer, which as at the date Customer signs these Clauses are those subsidiaries of Customer listed in Appendix 3, each a “data exporter”. The parties agree that Appendix 3 may be amended from time to time.

Data importer

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

[Information to be included reflecting the information in Attachment 1 of this DPA.]

Data subjects

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

[Information to be included reflecting the information in Attachment 1 of this DPA.]

Categories of data

[Information to be included reflecting the information in Attachment 1 of this DPA.]

Special categories of data (if appropriate)

[Information to be included reflecting the information in Attachment 1 of this DPA.]

Processing operations

[Information to be included reflecting the information in Attachment 1 of this DPA.]

ON BEHALF OF THE DATA EXPORTER

This document is deemed to be signed by each data exporter upon Customer signing below on behalf of the relevant 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):

[Note: to be included by Vendor.]

ON BEHALF OF THE DATA EXPORTER

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

Name: ……………………

Authorised Signature ……………………

DATA IMPORTER

Name: ……………………

Authorised Signature ……………………

APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties

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

Name

Registered Address
Country of Establishment
Registration Number
Data exporter signature*

Name: ……………………

Authorised Signature ……………………

* Although Customer 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 Customer Affiliates that are exporting personal data.]

ON BEHALF OF THE DATA EXPORTER

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

Name: ……………………

Authorised Signature ……………………

DATA IMPORTER

Name: ……………………

Authorised Signature ……………………