DATA PROCESSING ADDENDUM (GDPR and CCPA)
If required by Purchaser and expressly referenced in an Order Form executed between Devo and Purchaser, this data processing addendum (the “DPA”) is expressly incorporated by reference into Devo Terms of Service between Devo and Purchaser (including any Exhibits and Schedules thereto, the “ToS”). Devo may be required to collect, process, store and transfer Personal Data (as defined below) that is subject to the GDPR and/or the CCPA (each as defined below), when providing Services to Purchaser under the ToS. The DPA governs Devo’s collection, processing, storage and transfer of personal data, if any, under the ToS. Capitalized terms used in this DPA and not otherwise defined herein have the meaning as defined in the ToS. In the event of any conflict between this DPA and the ToS, the terms of this DPA shall govern and control.
1. Personal data types and processing purposes
1.1 The Purchaser and Devo acknowledge that for the purpose of applicable Privacy and Data Protection Requirements, the Purchaser is the data controller and Devo is the data processor.
1.2 The Purchaser retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Devo.
1.3 Annex A describes the general Personal Data categories and Data Subject types Devo may process to fulfil the Business Purposes of the ToS.
2. Devo’s obligations
2.1 Devo agrees that it will use Personal Data (i) for the following Purchaser business purposes, as to personal information: [insert one or more of the seven CCPA enumerated business purposes] (the “Purchaser Business Purposes”); and (ii) for the following Devo business purposes, as to personal information: [insert one or more of the seven CCPA enumerated business purposes] (the “Devo Business Purposes”).Devo will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Purchaser’s written instructions from Authorized Persons.
2.2 Devo will not process the Personal Data for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. Devo must promptly notify the Purchaser if, in its opinion, the Purchaser’s instruction would not comply with the Privacy and Data Protection Requirements. Devo represents and warrants that it will not (i) sell the Personal Data, (ii) retain, use or disclose the Personal Data for any purpose other than for the Purchaser Business Purposes and Devo Business Purposes, including retaining, using, or disclosing the Personal Data for a commercial purpose other than providing the Services, or (iii) retain, use, or disclose the Personal Data outside of the business relationship between Purchaser and Devo.
2.3 Devo must promptly comply with any written Purchaser request or instruction from Authorized Persons requiring Devo to amend, transfer or delete the Personal Data, or to stop, mitigate or remedy any unauthorized processing.
2.4 Devo will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Purchaser or this DPA specifically authorizes the disclosure, or as required by law. If a law requires Devo to process or disclose Personal Data, Devo must first inform the Purchaser of the legal requirement and give the Purchaser an opportunity to object or challenge the requirement, unless the law prohibits such notice.
2.5 Devo will reasonably assist the Purchaser with meeting the Purchaser’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of Devo’s processing and the information available to Devo.
2.6 Devo must promptly notify the Purchaser of any changes to Privacy and Data Protection Requirements that may adversely affect Devo’s performance of the ToS.
2.7 The Purchaser acknowledges that Devo is under no duty to investigate the completeness, accuracy or sufficiency of any specific Purchaser instructions from Authorized Persons or the Personal Data other than as required under the Privacy and Data Protection Requirements.
3. Devo’s employees
3.1 Devo will limit Personal Data access to:
a) those employees who require Personal Data access to meet Devo’s obligations under this Agreement; and
b) the part or parts of the Personal Data that those employees strictly require for the performance of their duties.
3.2 Devo will ensure that all employees:
a) are informed of the Personal Data’s confidential nature and use restrictions;
b) have undertaken training on the Privacy and Data Protection Requirements relating to handling Personal Data and how it applies to their particular duties; and
c) are aware both of Devo’s duties and their personal duties and obligations under the Privacy and Data Protection Requirements and this DPA.
3.3 Devo will take reasonable steps to ensure the reliability, integrity and trustworthiness of and conduct background checks consistent with applicable law on all of Devo’s employees with access to the Personal Data.
4.1 Devo must at all times implement appropriate technical and organizational measures designed to safeguard Personal Data against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display or distribution, and against accidental loss, destruction or damage including, but not limited to, the security measures set out in Annex C.
4.2 Devo must take reasonable precautions to preserve the integrity of any Personal Data it processes and to prevent any corruption or loss of the Personal Data, including but not limited to establishing effective back-up and data restoration procedures.
5. Devo’s CCPA Certification
5.1 In accordance with Cal. Civ. Code 1798.100 through 1798.199, Devo understands the restrictions under the CCPA in place and agrees and warrants that it will comply with them.
5.2 It is understood and agreed that the CCPA remains subject to amendment and regulations that have not yet been promulgated, and that other states and the United States Congress are considering similar laws (all of the foregoing, “New Privacy Laws”). Devo agrees and warrants that it will implement such policies and commitments as Purchaser may reasonably request in connection with compliance with New Privacy Laws, including without limitation undertaking the commitments required of “service providers” or Devos exempt from the definition of “third party” under the CCPA (including, without limitation, providing CCPA-required commitments and certification), and undertaking reasonable commitments to otherwise address New Privacy Laws, with regard to which Purchaser and Devo agree and warrant that they will work together in good faith to agree upon and to amend this DPA accordingly before the applicable effective dates of the CCPA and applicable New Privacy Laws. If the parties cannot reach agreement on how to address CCPA and/or New Privacy Laws, Purchaser may terminate the Services Agreement, subject to a transition period designated by Purchaser during which Devo will continue to provide the Services and assist in transitioning the Services to a new provider, and Purchaser shall only be responsible for fees and costs on a pro rata basis through the post-transition termination date.
6. Security breach and personal data loss
6.1 Devo will promptly notify the Purchaser if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. Devo will restore such Personal Data at its own expense.
6.2 Either party will notify the other party if it becomes aware of:
a) any unauthorized or unlawful processing of the Personal Data; or
b) any Security Breach.
6.3 Immediately following any unauthorized or unlawful Personal Data processing or Security Breach, the parties will co-ordinate with each other to investigate the matter. Devo will reasonably co-operate with the Purchaser in the Purchaser’s handling of the matter, including:
a) assisting with any investigation;
b) providing the Purchaser with physical access to any facilities and operations affected;
c) facilitating interviews with Devo’s employees, former employees and others involved in the matter; and
d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Privacy and Data Protection Requirements or as otherwise reasonably required by the Purchaser.
6.4 Devo will not inform any third party of any Security Breach without first obtaining the Purchaser’s prior written consent, except when law or regulation requires it.
6.5 Devo agrees that the Purchaser has the sole right to determine:
a) whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies or others, as required by law or regulation or in the Purchaser’s discretion, including the contents and delivery method of the notice; and
b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
6.6 Devo will cover all reasonable expenses associated with the performance of the obligations under clause 6.2 and clause 6.3, unless the matter arose from the Purchaser’s specific instructions, negligence, wilful default or breach of this DPA, in which case the Purchaser will cover all reasonable expenses.
6.7 Devo will also reimburse the Purchaser for reasonable, documented, out-of-pocket expenses the Purchaser actually incurs and as necessary to respond to and mitigate damages caused by Devo’s Security Breach.
7. Cross-border transfers of personal data
7.1 If the Privacy and Data Protection Requirements restrict cross-border Personal Data transfers, the Purchaser will only transfer that Personal Data to Devo under the following conditions:
a) Devo, either through its location or participation in a valid cross-border transfer mechanism under the Privacy and Data Protection Requirements, may legally receive that Personal Data. Devo must identify in Annex A the location or mechanism that enables it to receive that Personal Data and must immediately inform the Purchaser of any change to that status;
b) The Purchaser obtained valid Data Subject consent to the transfer under the Privacy and Data Protection Requirements; or
c) The transfer otherwise complies with the Privacy and Data Protection Requirements for the reasons set forth in Annex A.
7.2 If any Personal Data transfer between Devo and the Purchaser requires execution of Standard Contractual Clauses in order to comply with the Privacy and Data Protection Requirements, the parties will complete all relevant details in, and execute, the Standard Contractual Clauses contained in Annex B, and take all other actions required to legitimize the transfer, including, if necessary:
a) co-operating to register the Standard Contractual Clauses with any supervisory authority in any member state of the European Economic Area; or
b) procuring approval from any such supervisory authority; or
c) providing additional information about the transfer to such supervisory authority.
8.1Devo may only authorize a third party (subcontractor) to process the Personal Data if:
a) the Purchaser provides prior written consent;
b) Devo enters into a written contract with the subcontractor that contains terms not less protective than those set out in this DPA and, upon the Purchaser’s written request, provides the Purchaser with copies of such contracts;
c) Devo maintains control over all Personal Data it entrusts to the subcontractor; and
d) the subcontractor’s contract terminates automatically on termination of this DPA for any reason.
8.2 Devo must list all approved subcontractors in Annex A.
8.3 Where the subcontractor fails to fulfil its obligations under such written agreement, Devo remains fully liable to the Purchaser for the subcontractor’s performance of its agreement obligations.
8.4 Upon the Purchaser’s written request and at Purchaser’s expense, Devo will audit a subcontractor’s compliance with its obligations regarding the Purchaser’s Personal Data and provide the Purchaser with the audit results.
8.5 The foregoing provisions shall not apply if and to the extent Devo subcontracts with Amazon Web Services (AWS), Google Cloud Platform (GCP), Microsoft Azure or other similarly reputable cloud hosting service provider (“CHP”). In such event, the standard terms and conditions of such cloud hosting service provider shall apply.
9. Complaints, data subject requests and third party rights
9.1 Devo must notify the Purchaser promptly if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Privacy and Data Protection Requirements, including a request from a Data Subject for access to their Personal Data
9.2 Devo will cooperate with and assist the Purchaser in responding to any complaint, notice, communication or Data Subject request.
9.3 Devo must not disclose the Personal Data to any Data Subject or to a third party other than at the Purchaser’s request or instruction, as provided for in this DPA or as required by law.
10. Term and termination
10.1 This DPA will remain in full force and effect so long as (a) the ToS remains in effect, or (b) Devo retains any Personal Data related to the ToS in its possession or control (Term).
10.2 Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the ToS in order to protect Personal Data will remain in full force and effect.
10.3 In the event of Devo’s breach of this DPA, the parties will suspend the processing of Personal Data until, Devo has cured the breach, but no later than within 5 business days. In the event Devo is unable to cure the breach within 5 business days or in the event of a material breach, the Purchaser may terminate the part of the ToS authorizing the processing of Personal Data effective immediately upon written notice to Devo without further liability or obligation.
10.4 If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its ToS obligations, the parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Privacy and Data Protection Requirement within 10 business days, they may terminate the ToS upon written notice to the other party.
11. Data return and destruction
11.1 At the Purchaser’s request, Devo will give the Purchaser a copy of or access to all or part of the Purchaser’s Personal Data in its possession or control in the format and on the media reasonably specified by the Purchaser.
11.2 On termination of the ToS for any reason or expiry of its term, Devo will securely destroy or, if directed in writing by the Purchaser, return and not retain, all or any Personal Data related to this agreement in its possession or control.
11.3 If any law, regulation, or government or regulatory body requires Devo to retain any documents or materials that Devo would otherwise be required to return or destroy, it will notify the Purchaser in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
11.4 Devo will certify in writing that it has destroyed the Personal Data after it completes the destruction.
12.1 Devo will keep detailed, accurate and up-to-date records regarding any processing of Personal Data it carries out for the Purchaser, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, and the processing purposes (Records).
12.2 Devo will ensure that the Records are sufficient to enable the Purchaser to verify Devo’s compliance with its obligations under this DPA.
12.3 The Purchaser and Devo must review the information listed in the Annexes to this DPA to confirm its current accuracy and update it when required to reflect current practices.
13.1 Devo will conduct at its own cost and expense, security and privacy assessments, and application penetration test reports performed by independent third parties and will maintain the following annual assessments for Devo’s applications, services, and systems associated with accessing, processing, storage, communication and/or transmission of the Data and Sensitive Data: System and Organization Controls (SOC 2) Type II report including relevant principles (Security, Availability, Processing Integrity, Confidentiality and Privacy) providing coverage of the entire year; and at least annually, upon Purchaser’s written request, Devo agrees to provide Purchaser with copies of all requested certificates, reports or packages in a timely manner. The Purchaser will treat such audit reports as Devo’s confidential information under this Agreement.
13.3 Devo will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by Devo’s management.
14.1 Devo warrants and represents that:
a) its employees, subcontractors (except for CHP, with respect to whom the disclosure materials provided on the relevant CHP’s website shall govern), agents and any other person or persons accessing Personal Data on its behalf have received the required training on the Privacy and Data Protection Requirements relating to the Personal Data; and
b) it and anyone operating on its behalf will process the Personal Data in compliance with all applicable Privacy and Data Protection Requirements and other laws, enactments, regulations, orders, standards and other similar instruments; and
c) it has no reason to believe that any Privacy and Data Protection Requirements prevent it from providing any of the ToS’s contracted services; and
d) considering the current technology environment and implementation costs, it will take appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:
- the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage; and
- the nature of the Personal Data protected; and
- comply with all applicable Privacy and Data Protection Requirement and its information and security policies, including the security measures required in clause 5.1.
14.2 The Purchaser warrants and represents that Devo’s expected use of the Personal Data for the Business Purpose and as specifically instructed by the Purchaser will comply with all Privacy and Data Protection Requirements.
15.1 Any notice or other communication given to a party under or in connection with this DPA must be in writing and delivered to:
For the Purchaser: At the address provided on the signature page
For Devo: Devo Inc Spanish Branch, Legal Dept, 3-5 Calle Estebanez Calderon, 5th Floor, 28020 Madrid, Spain
15.2 Clause 14.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16. Definitions and interpretation
The following definitions and rules of interpretation apply in this DPA.
Business Purpose: the services described in the ToS or any other purpose specifically identified in Annex A.
Data Subject: an individual who is the subject of Personal Data.
Personal Data: any information Devo processes for the Purchaser that (1) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in Devo’s possession or control or that Devo is likely to have access to, or (2) the relevant Privacy and Data Protection Requirements otherwise define as protected personal data.
Processing, processes and process: either any activity that involves the use of Personal Data or as the relevant Privacy and Data Protection Requirements may otherwise define processing, processes or process. It includes obtaining, recording or holding the data, or carrying out any operation or set of operations on the data including organizing, amending, retrieving, using, disclosing, erasing or destroying it. Processing also includes transferring Personal Data to third parties.
Privacy and Data Protection Requirements: all applicable laws and regulations relating to the processing, protection or privacy of the Personal Data, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This includes, but is not limited to, the CCPA and GDPR.
Security Breach: any act or omission that compromises the security, confidentiality or integrity of Personal Data or the physical, technical, administrative or organizational safeguards put in place to protect it. The loss of or unauthorized access, disclosure or acquisition of Personal Data is a Security Breach.
Standard Contractual Clauses (SCC): the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which comprises Annex B.
16.2 This DPA is subject to the terms of the ToS and is incorporated into the ToS. Interpretations and defined terms set forth in the ToS apply to the interpretation of this DPA.
16.3 The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.
16.4 A reference to writing or written includes email.
16.5 In the case of conflict or ambiguity between:
a) any provision contained in the body of this DPA and any provision contained in the Annexes, the provision in the body of this DPA will prevail;
b) the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Annexes, the provision contained in the Annexes will prevail;
c) any of the provisions of this DPA and the provisions of the ToS, the provisions of this DPA will prevail; and
d) any of the provisions of this agreement and any executed Standard Contractual Clauses, the provisions of the executed Standard Contractual Clauses will prevail.
This agreement has been entered into on the date stated at the beginning of it.
|for and on behalf of Purchaser
|for and on behalf of Devo||Name:
Annex A Personal Data Processing Purposes and Details
Personal Data Categories:
Data Subject Types:
Identify Devo’s legal basis for receiving Personal Data with cross-border transfer restrictions (select one):
___ Located in an EEA Member State or in a country with a current determination of adequacy (list country): ___________________________
___ Binding Corporate Rules
___ Standard Contractual Clauses
___ EU-US Privacy Shield Certified
___ Other (describe in detail):_______________________________________________________]
Annex B Standard Contractual Clauses
[STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA FROM THE EUROPEAN UNION TO PROCESSORS ESTABLISHED IN THIRD COUNTRIES (CONTROLLER-TO-PROCESSOR TRANSFERS]
Standard Contractual Clauses
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.
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.
Third-party beneficiary clause
- 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.
- 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.
- 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.
- 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.
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 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;
(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 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;
(i) 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
(j) that it will ensure compliance with Clause 4(a) to (i).
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.
- 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.
- 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.
- 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.
Mediation and jurisdiction
- 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.
- 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.
Cooperation with supervisory authorities
- 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.
- 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.
- 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established
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.
- 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.
- 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.
- 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.
- 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.
Obligation after the termination of personal data processing services
- 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.
- 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:
On behalf of the data importer:
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.
The contents of Annex A to the DPA shall also form Appendix 1 to these Clauses.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
This Appendix shall contain a 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 contents of Annex C to the DPA shall also form Appendix 2 to these Clauses.
Annex C Security measures
Devo IT Security Standard available from Devo upon request to [email protected]