Data Protection Addendum - SaaS

[Last Modified: January 1, 2020]

This DPA supplements the applicable Vidazoo’s SaaS services,.

Vidazoo shall hereby act as a Processor (as defined below), and Customer, which shall act as a Controller (as defined below).

1. Definitions

1.1 In this Addendum, the following terms shall have the meanings set out below:

1.1.1 " Applicable Laws " means any applicable laws, rules, regulations, policies, and best industry standards, including without limitation, any Data Protection Law, copyright and consumer protection laws with respect to any Customer Personal Data;

1.1.2 " Customer’s Affiliate " means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.1.3 " Customer Group Member " means Customer or any Customer Affiliate;

1.1.4 " Customer Personal Data " means any Personal Data, as defined by Applicable Laws, processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Principal Agreement;

1.1.5 " Contracted Processor " means Vidazoo and/or any Sub-processor;

1.1.6 " Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other applicable jurisdiction;

1.1.7 " EEA " means the European Economic Area;

1.1.8 " EU Data Protection Laws " means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.9 " GDPR " means EU General Data Protection Regulation 2016/679;

1.1.10 " Services " means the services and other activities to be supplied to or carried out by or on behalf of Vidazoo or anyone on its behalf, pursuant to the Principal Agreement;

1.1.11 “Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data to third countries pursuant to Commission Decision 2010/87/EG of 5 February 2010 (C(2010)593).

1.1.12 " Sub-processor " means any entity and/or a person (including any third party and any Vidazoo Affiliate, but excluding an employee of Vidazoo or any of its sub-contractors) appointed by or on behalf of Vidazoo or any Vidazoo Affiliate to Process Personal Data on behalf of the Customer in connection with the Principal Agreement; and

1.1.13 " Vidazoo Affiliate " means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vidazoo, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

1.2 The terms, " Commission ", " Controller ", " Data Subject ", " Member State ", " Personal Data ", " Personal Data Breach ", " Processing " and " Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Authority

Vidazoo or anyone on its behalf shall Processes any Customer Personal Data according to Customer’s written instructions.

3. Processing of Customer Personal Data

3.1 Vidazoo declares that Vidazoo and anyone processing on its behalf shall:

3.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and

3.1.2 not Process Customer Personal Data other than on the relevant Customer documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject. In which case Vidazoo or the relevant Contracted Processor shall inform the Customer of that legal requirement before the relevant Processing of that Personal Data.

3.1.3 Vidazoo and each Contracted Processor and their representatives, will keep records of their Processing activities performed on behalf of the Customer, including but not limited to records relating to the Processed categories, information relating to cross border data transfers and the security measures implemented for the Processes Data.

3.2 Only Customer may:

3.2.1 Authorize Vidazoo and each Vidazoo Affiliate (and Vidazoo and each Vidazoo Affiliate to authorize each Sub-processor) to:

3.2.1.1 Process Customer Personal Data; and

3.2.1.2 transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement.

3.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Vidazoo from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3 ) confers any right or imposes any obligation on any party to this Addendum.

4. Vidazoo Personnel

Vidazoo has taken reasonable steps to ensure the reliability of any of its employees, agents or contractors who may have access to the Customer Personal Data. Vidazoo ensures that in each case that access will be strictly limited to those individuals who need to know / access the relevant Customer Personal Data for the purposes of the Principal Agreement and to comply with Applicable Laws in the context of that individual's duties to Vidazoo, ensuring that all such individuals are subject to Processors Obligations under this Addendum, confidentiality undertakings or professional or statutory obligations of confidentiality.

5. Security

5.1 Vidazoo had implemented appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, which may include measures such as access control, auditing, encrypted transmission of data, encrypted storage and physical protections in-line with industry best practices, in accordance with Article 32(1) of the GDPR and other Data Protection Laws and relevant regulations.

5.2 Customer may prohibit the Processing of certain types of Personal Data. The prohibited types of data may be incorporated in this Addendum, the Principal Agreement or any other type of written communication,

6. Sub-Processing

6.1 Customer agrees that Vidazoo may appoint Sub-processors in accordance with this section 6 and any restrictions in the Principal Agreement.

6.2 Vidazoo may continue to use those Sub-processors already engaged by Vidazoo as at the date of this Addendum, as included in Annex 2 to this Addendum.

6.3 Vidazoo shall notify Customer prior of the engagement of any new Sub-processor, including sufficient details of the Processing to be undertaken by the Sub-processor. Customer may object for reasonable reasons to the appointment of such Sub-Processor within 15 days of Vidazoo’s notice. In the event that the objection is not unreasonable, the parties will work together in good faith to find a solution to address such objection within 10 business days, 3 including but not limited to trying to make the Services available without the involvement of such Sub-processor.

6.4 With respect to each Sub-processor, Vidazoo:

6.4.1 shall carry out reasonable due diligence to ensure that the Sub-processor is capable of providing the level of protection for Customer Personal Data required by the Principal Agreement;

6.4.2 Will enter into a written agreement with the Sub-processor that includes terms which offer at least the same level of protection for Customer Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;

6.5 Vidazoo shall ensure that each Sub-processor performs the obligations under sections 3.1 , 4 , 5 , 7.1 , 8.2 , 9 and 11.1 , as they apply to Processing of Customer Personal Data carried out by that Sub-processor, as if it were party to this Addendum in place of Vidazoo.

7. Data Subject Rights 7.1 Taking into account the nature of the Processing. Should a Data Subject contact Vidazoo with regard of exercising its rights under the Data Protection Laws, Vidazoo shall use commercially reasonable efforts to forward such request to Customer. 7.2 Vidazoo shall not respond to that request except on the documented instructions from Customer or the relevant Customer Affiliate or as required by Applicable Laws to which it is subject.

8. Personal Data Breach

8.1 Vidazoo shall notify Customer without undue delay of becoming aware of any Personal Data Breach, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

8.2 Vidazoo shall co-operate with Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

9. Data Protection Impact Assessment and Prior Consultation

Vidazoo shall provide reasonable assistance to Customer with any data protection impact assessments, required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to Vidazoo.

10. International transfers:

It is agreed that the processing and transfer of Personal Data outside of the EU/EEA be governed by the terms of the Standard Contractual Clauses, which is attached as annex 3 to this Addendum, and are incorporated to this Addendum by reference and considered duly 4 executed between the parties upon the execution of this Addendum. Where the Standard Contractual Clauses relate to Data Importer, it shall be considered Vidazoo and where the Standard Contractual Clauses relate to Data Exporter, it shall be considered Customer. Any reference to Data Subject, Categories and Special Categories of Data, and Processing Operations shall be considered as set forth in Annex 1 of this Addendum, and references to technical and organisational security measures shall be considered clause 5 of this Addendum. The Standard Contractual Clauses will apply to any transfer of Personal Data unless Vidazoo can provide an adequate level of protection via another mechanism, such as Binding Corporate Rules, approved Codes of Conduct, or approved Certification mechanism. The Standard Contractual Clauses cannot be changed. In the event of any inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

11. Deletion or return of Customer Personal Data

11.1 Subject to sections 11.2 and 11.3 Vidazoo shall promptly and in any event within 15 days of the date of cessation of any Services involving the Processing of Customer Personal Data (the " Cessation Date "), delete and procure the deletion of all copies of those Customer Personal Data.

11.2 Subject to section

11.3 , Customer may request by written notice to Vidazoo to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer; and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor. Vidazoo shall comply with any such written request within 15 days of the Cessation Date. 11.3 Each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and provided that Vidazoo shall ensure the confidentiality of all such Customer Personal Data.

12. Audit rights

12.1 Subject to section 12, Vidazoo will make available to Customer on prior request of at least 60 days, the information necessary to demonstrate compliance with this Addendum and the GDPR, and shall allow for, and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.

12.2 Information and audit rights of the Customer only arise under section 12.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).

12.3 Customer undertaking an audit shall give Vidazoo reasonable notice of any audit or inspection to be conducted under section 12.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an 5 audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:

12.3.1 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer or the relevant Customer Affiilate undertaking an audit has given notice to Vidazoo that this is the case before attendance outside those hours begins; or

12.3.2 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which Customer is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Customer undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vidazoo of the audit or inspection.

13. Cooperation

13.1. Vidazoo shall provide reasonable co-operation, assistance and information to Customer in order to conduct a defense of any claim or allegation that there has been any unauthorized use, Processing, disclosure or acquisition of or access to any Personal Data and/or to perform all of Customer’s obligations under all applicable Data Protection Laws, which relates to the processing by Vidazoo under the Principal Agreement.

14. General Terms

14.1 The parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and

14.2 This Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.

14.3 Nothing in this Addendum reduces the Parties obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vidazoo to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement.

14.4 Subject to section 13.2 , with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.

14.5 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving 6 the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein. 7

ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Customer Personal Data

The subject matter and duration of the Processing of the Customer Personal Data are set out in the Principal Agreement and this Addendum.

The nature and purpose of the Processing of Customer Personal Data

[ Include description here ]

The types of Customer Personal Data to be Processed

[ Include list of data types here ]

The categories of Data Subject to whom the Customer Personal Data relates

[ Include categories of data subjects here ]

The obligations and rights of Customer and Customer Affiliates

The obligations and rights of Customer and Customer Affiliates are set out in the Principal Agreement and this Addendum.

Annex 2 – List of Sub-Processors

Effective: May 25, 2018

Subprocessor

Function

AWS

Server hosting and services

Heroku

Applications Management

Google Cloud (BigQuery)

Data storage

Aiven.io

Data storage

MongoDB Atlas

Data storage

RedisLabs

Data storage

Digital Ocean

Server hosting and services

CloudAMPQ

Message queuing service

MemSQL

Data storage

Logentries

Application logging

New Relic

Infrastructure monitor tool

Sentry

Error tracking

Annex 3 – Standard Contractual Clauses

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: ..................................................................................................................................................

Address: ...................................................................

Tel. ................................................................ fax ................................................................

e-mail: ...............................................................

Other information needed to identify the organisation ............................................................................................................................

(the data exporter )

And

Name of the data importing organisation: ........................................................

Address: .................................................................................

Tel. ................................................................ fax ...............................................................;

e-mail: ...............................................................

Other information needed to identify the organisation:

...................................................................................

(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 ( 1 ) ;

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

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

( 1 ) Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

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

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

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the 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:

(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; 12

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

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

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

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

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

Clause 5

Obligations of the data importer ( 1 )

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 13 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;

( 1 ) Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

(d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorised access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

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

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

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be 14 replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

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

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1.The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1.The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

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

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely .......................................................................

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Sub-processing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses ( 1 ). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

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

3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely ...........................................

( 1 ) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data-processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

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

On behalf of the data exporter:

Name (written out in full): .......................................................................................

Position: ..........................................................................................................................................

Address: ..................................................................................................................

Other information necessary in order for the contract to be binding (if any):

Signature ........................................................

(stamp of organisation)

On behalf of the data importer:

Name (written out in full): ..........................................................................................

Position: ..................................................................................................

Address: ...........................................................................................

Other information necessary in order for the contract to be binding (if any):

Signature .................................................

(stamp of organisation)

Appendix 1

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer): ...........................................................................................................................................................

Data importer

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

Data subjects

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

as set forth in Annex 1 ...........................................................................................................................................................

Categories of data

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

as set forth in Annex 1 ...........................................................................................................................................................

Special categories of data (if appropriate)

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

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify): as set forth in Annex 1 ...........................................................................................................................................................

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):

As described in the Addendum