Mighty Networks EU Data Processing Addendum
Last updated: October 14, 2020
This Data Processing Addendum (“DPA”), forms part of the Agreement between Mighty Software, Inc. (“Mighty Networks”) and you, a Host of a Mighty Network. It was first effective on May 25, 2018, and modified on October 14, 2020 to incorporate the Standard Contractual Clauses regarding data transfers and remove references to Privacy Shield.
1. Definitions
All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Agreement” means Mighty Networks’ Terms of Use, which govern the provision of the Services to Host, as such terms may be updated by Mighty Networks from time to time.
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law.
“EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
“EEA” means the European Economic Area, United Kingdom and Switzerland.”Host Data” means any personal data that Mighty Networks processes on behalf of Host as a processor in the course of providing Services, as more particularly described in this DPA. Host Data means all personal data provided directly by Host to Mighty Networks, and all personal data that Members of Host’s Networks provide when they registration for and participate in Host’s Networks.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Host Data.
“Services” means any product or service provided by Mighty Networks to Host pursuant to the Agreement.
“Standard Contractual Clauses” means Annex 1, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
“Subprocessors” means the other processors that are used by Mighty Networks to process Personal Data.
2. Relationship with the Agreement
2.1 The parties agree that the DPA shall replace any existing data processing addendum the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 Host further agrees that any regulatory penalties incurred by Mighty Networks in relation to the Host Data that arise as a result of, or in connection with, Host’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall reduce Mighty Networks’ liability under the Agreement.
2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1 This DPA applies where and only to the extent that Mighty Networks processes Host Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Host as a processor in the course of providing Services pursuant to the Agreement.
4. Roles and Scope of Processing
4.1 Role of the Parties.
As between Mighty Networks and Host, Host is the controller of Host Data, and Mighty Networks shall process Host Data only as a processor acting on behalf of Host.
4.2 Host Processing of Host Data.
Host agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Host Data and any processing instructions it issues to Mighty Networks; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Mighty Networks to process Host Data and provide the Services pursuant to the Agreement and this DPA.
4.3 Mighty Networks Processing of Host Data.
Mighty Networks shall process Host Data only for the purposes described in this DPA and only in accordance with Host’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Host’s complete and final instructions to Mighty Networks in relation to the processing of Host Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Host and Mighty Networks.
4.4 Details of Data Processing
a. Subject matter: The subject matter of the data processing under this DPA is the Host Data.
b. Duration: As between Mighty Networks and Host, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
c. Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Host and the performance of Mighty Networks’ obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
d. Nature of the processing: Mighty Networks provides a platform for Hosts to create and manage communities dedicated to an individual, identity, or interest. Hosts invite people (“Members”) to connect with each other, to message, and to exchange information and content. Hosts tailor their Mighty Network by the Members they invite, the conversations they organize, what they call their Mighty Network, and additional branding they may choose to use.
e. Categories of data subjects: Any individual accessing and/or using the Services through the Host’s account (“Users”); and any individual who joins one of Host’s Networks (collectively, Members).
f. Types of Host Data:
i. Host and Users: Identification and contact data (name, email address, title, contact details, username); employment details (employer, job title, geographic location, area of responsibility); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information);
ii. Members: Identification and contact data (name, gender, occupation, email address, title), personal interests or preferences (including marketing preferences and, if End User chooses to integrate Network account with social media profile, social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data (depending on End User’s settings) and browser data); financial information if End User must pay to join Network (credit card details, account details, payment information); and all other information provided by End User to Network.
4.5 Disclosures for Legitimate Business Purposes.
Not withstanding anything to the contrary in the Agreement (including this DPA), Host acknowledges that Mighty Networks shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing.
4.6 Tracking Technologies.
Host acknowledges that in connection with the performance of the Services, Mighty Networks and its service providers employ the use of cookies, unique identifiers, and similar tracking technologies (“Tracking Technologies”). Mighty Networks shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable it and its service providers to deploy Tracking Technologies lawfully on, and collect data from, the devices of Users and Members in accordance with and as described in the Mighty Networks Cookie Policy.
5. Subprocessing
5.1 Authorized Subprocessors.
Host agrees that Mighty Networks may engage Subprocessors to process Host Data on Host’s behalf.
5.2 Subprocessor Obligations.
Mighty Networks shall: (i) enter into a written agreement with each Subprocessor imposing data protection terms that require the Subprocessor to protect the Host Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause Mighty Networks to breach any of its obligations under this DPA.
5.3 The list of Subprocessors as of the Effective Date is here. Mighty Networks shall provide an up-to-date list of the Subprocessors it has appointed upon written request from Host. The Subprocessor list shall be updated on a regular basis.
5.4 Mighty Networks shall give Host prior written notice of the appointment of any new Subprocessor by posting the updated list. Host may object in writing to Mighty Networks’ appointment of additional Subprocessors, provided that such objection is based on reasonable grounds relating to data protection. If, within five (5) business days of receipt of that notice, Host notifies Mighty Networks in writing of any objections (on reasonable grounds) to the proposed appointment, Mighty Networks shall take reasonable steps to address the objections raised by Host. If Host and Mighty Networks are not able to resolve the appointment of a new Subprocessor within a reasonable period, Host shall have the right to terminate the Agreement (without refund or prejudice to any fees incurred by Host prior to suspension or termination).
6. Security
6.1 Security Measures.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights of data subjects, without prejudice to any other security standards agreed upon by the parties, Mighty Networks shall implement and maintain appropriate technical and organizational security measures to protect Host Data from Security Incidents and to preserve the security and confidentiality of the Host Data, in accordance with Mighty Networks’ security standards described in this DPA and at Section XI of Mighty Networks’ Privacy Policy (“Security of Your Personal Data”). Mighty Networks shall operate and maintain the system and server on which Host Data is stored in a locked and secured location, with access restricted to only authorized employees to whom access is necessary to provide the Service. Mighty Networks warrants the following in connection with the Service: (i) it has used adequate security safeguards, procedures and/or firewalls (to the extent reasonably practical with available technology) to ensure that third parties cannot alter any content contained within the Service; (ii) the Service shall receive and transmit all information in not less than a 256-bit encrypted format with Secure Socket Layer technology; and Mighty Networks shall be responsible for providing adequate logical and physical security measures to ensure the integrity of Host Data used on the Service. Security measures shall include, but are not limited to: industry standard firewalls, intrusion detection systems, proper auditing settings, security policies, sound authentication and authorization techniques, video surveillance and locked server rooms. Mighty Networks shall not voluntarily assist the U.S. government in its conduct of Executive Order 12333 (https://dodsioo.defense.gov/Library/EO-12333/) activities, and has not received any directives under Section 702 of the U.S. Foreign Surveillance Act (https://www.law.cornell.edu/uscode/text/50/1881a).
6.2 Updates to Security Measures.
Host is responsible for reviewing the information made available by Mighty Networks relating to data security and making an independent determination as to whether the Services meet Host’s requirements and legal obligations under Data Protection Laws. Host acknowledges that the Security Measures are subject to technical progress and development and that Mighty Networks may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.
6.3 Host Responsibilities.
Notwithstanding the above, Host agrees that except as provided by this DPA, Host is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of User Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any User Data uploaded to the Services. Host understands that the Services are hosted on Amazon cloud servers.
6.4 Confidentiality of processing.
Mighty Networks shall ensure that any person who is authorized by Mighty Networks to process Host Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
6.5 Security Incident Response.
Upon becoming aware of a Security Incident, Mighty Networks shall notify Host without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Host.Mighty Networks shall fully cooperate and assist with Host’s investigation, containment and mitigation efforts.
6.6 Disaster Recovery
For all systems used in connection with the Services, Mighty Networks shall establish and maintain arrangements for emergency backup services and resources that assure uninterrupted delivery of the Services to the extent reasonably practicable. If a disaster occurs at and/or affects the facilities and interrupts the Services, whether or not covered by a written disaster recovery plan in existence as of the effective date, Mighty Networks shall take all commercially reasonable measures to minimize the damage caused by any impairment of the Services resulting from the disaster and avoid recurrence.
7. Verification
7.1 Upon reasonable request, Mighty Networks will verify its compliance with this DPA, provided that Host shall not exercise this right more than once per year.
8. International Transfers
8.1 Data center locations.
Mighty Networks may transfer and process Host Data anywhere in the world where Mighty Networks, its Affiliates or its Subprocessors maintain data processing operations. Mighty Networks shall at all times provide an adequate level of protection for the Host Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.
8.2 Standard Contractual Clauses.
Mighty Networks will not process Host Data related to personal data of data subjects located in the EEA in a location outside of the EEA, except pursuant to the Standard Contractual Clauses (attached as Annex 1) or any replacement thereof.
8.3 Changes in the Law.
To the extent that Host or Mighty Networks are relying on a specific statutory mechanism to normalize international data transfers (namely, Standard Contractual Clauses) that is subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, Mighty Networks and Host agree to cooperate in good faith to promptly terminate the transfer or to pursue a suitable alternative mechanism that can lawfully support the transfer.
9. Return or Deletion of Data
9.1 Upon termination or expiration of the Agreement, Mighty Networks shall (at Host’s election) delete or return to Host all Host Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Mighty Networks is required by applicable law to retain copies of some or all of the Host Data, or to Host Data it has archived on back-up systems, which Host Data Mighty Networks shall securely isolate and protect from any further processing, except to the extent required by applicable law.
10. Cooperation
10.1 The Services provide Hosts and Members with controls that Hosts and Members may use to retrieve, correct, delete or restrict Host Data, which Host may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Host is unable to independently access the relevant Host Data within the Services, Mighty Networks shall (at Host’s expense) provide reasonable cooperation to assist Host to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to Mighty Networks, Mighty Networks shall not respond to such communication directly without Host’s prior authorization, unless legally compelled to do so. If Mighty Networks is required to respond to such a request, Mighty Networks shall promptly notify Host and provide it with a copy of the request unless legally prohibited from doing so.
10.2 If a law enforcement agency sends Mighty Networks a demand for Host Data (for example, through a subpoena or court order), Mighty Networks shall attempt to redirect the law enforcement agency to request that data directly from Host. As part of this effort, Mighty Networks may provide Host’s basic contact information to the law enforcement agency. If compelled to disclose Host Data to a law enforcement agency, then Mighty Networks shall give Host reasonable notice of the demand to allow Host to seek a protective order or other appropriate remedy unless Mighty Networks is legally prohibited from doing so.
10.3 To the extent Mighty Networks is required under EU Data Protection Law, Mighty Networks shall (at Host’s expense) provide reasonably requested information regarding the Services to enable the Host to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
11. Changes in Data Protection Laws
11.1 Mighty Networks may modify or supplement this Addendum, with reasonable notice to the Host: (i) If required to do so by a supervisory authority or other government or regulatory entity; (ii) If necessary to comply with applicable law; (iii) To implement new or updated Standard Contractual Clauses approved by the European Commission; or (iv) To adhere to an approved code of conduct or certification mechanism approved or certified pursuant to Articles 40, 42 and 43 GDPR.
Annex 1
Personal Data Transfer Agreement (Model Contract Clause Requirements)
Between
Mighty Software, Inc. (“Data Importer”)
and
Host (“Data Exporter”)
WHEREAS the Data Exporter and the Data Importer wish to ensure that any transfer of Personal Data from the Data Exporter to the Data Importer in connection with the Services is done in full compliance with Article 26(2) of Directive 95/46/EC
Data Exporter and the Data Importer have with effect from 16th day of July 2020 reached the following agreement:
Data Exporter and the Data Importer are hereby deemed to have separately entered into the standard contractual clauses below (“Clauses”). Accordingly in each instance the Clauses shall constitute a separate and independent agreement between Date Importer and Data Exporter.
The applicable data protection law of the Clauses concluded by Data Exporter by virtue of this agreement shall be the law of the jurisdiction ascribed to Data Exporter in above.
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 organizational 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
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.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational 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, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(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).
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 organizational 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
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.
Clause 7
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.
Clause 8
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).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
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
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 fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the 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.
Clause 12
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.
Appendix 1 to the Standard Contractual Clauses
Personal Data Processing Description:
See Section 4.4 of the DPA.
Appendix 2 to the Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the Data Importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
See Section 6 of the DPA.