Data Processing Agreement

Version: 1.0.1
Last update: 31.08.2020

PARTIES

1 - These Data Processing Agreement and its Annexes (DPA or Agreement) is entered into between you (Customer or you) and KRAVT HOLDINGS CY LTD, a company with limited liability, address: EFI COURT, FLAT/OFFICE 202 LAZAROU KOUNTOURIOTI 6 LIMASSOL 3106, hereinafter collectively referred to as «the Parties» and severally as «the Party».

2 - The parties acknowledge and agree that with regard to the processing of Personal Data, the Customer is the controller (CONTROLLER) and KRAVT HOLDINGS CY LTD is a processor acting on behalf of Customer (Processor).

BACKGROUND

A - This DPA is incorporated into and is subject to the Terms of Use (Terms of Use) or other written or electronic agreement, which govern the provision of the Services to Customer.

B - This DPA reflects the parties’ agreement with respect to the Processing of Personal Data by Processor on behalf of CONTROLLER in connection with the Services provided under the Terms of Use.

C - This Agreement sets out the additional terms, requirements and conditions on which Processor will process Personal Data when providing services under the Terms of Use. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.

AGREED TERMS

1. Definitions and interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1 Definitions:

Services Purposes: the Services described in the Terms of Use or any other purpose specifically identified in ANNEX A.

Data Subject: an individual who is the subject of Personal Data.

Personal Data: means any information relating to an identified or identifiable natural person that is processed by Processor as a result of, or in connection with, the provision of the services under the Terms of Use; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

Processing, processes and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.

Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time.

Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

SCC: the European Commission’s 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 of the European Parliament and of the Council (2010/87/EU).

Services: various services of chatbots creation and administration provided to Customer on https://twintwoo.ai/en website and more specifically described at Terms of Use.

1.2 Annexes A and B form an integral part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes both Annexes.

1.3 A reference to writing or written includes faxes, email and electronic messaging service.

In the case of conflict or ambiguity between:

  • any provision contained in the body of this Agreement and any provision contained in Annex A, the provision in the body of this Agreement will prevail;
  • the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in Annex A, the provision contained in Annex A will prevail;
  • any of the provisions of this Agreement and the provisions of Terms of Use, the provisions of this Agreement will prevail.

2. Personal data types and processing purposes

2.1 CONTROLLER and Processor acknowledge that for the purpose of the Data Protection Legislation, CONTROLLER is the Controller and Processor is the processor.

2.2 CONTROLLER retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Processor.

2.3 ANNEX A describes the subject matter, duration, nature and purpose of processing, the Personal Data categories, Data Subject types in respect of which Processor may process to fulfil the Services Purposes of the Terms of Use, as well as the relevant security measures to be taken by Processor.

2.4 ANNEX B is STANDARD CONTRACTUAL CLAUSES concluded in accordance with the European Commission’s 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 of the European Parliament and of the Council (2010/87/EU).

3. Processor’s obligations

3.1 Processor will only process the Personal Data to the extent, and in such a manner, as is necessary for the Services Purposes in accordance with CONTROLLER's lawful written instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing ("Permitted Purposes"). The parties agree that the Terms of Use (including this DPA) sets out CONTROLLER's complete and final instructions to Processor in relation to the processing of Personal Data, and processing outside the scope of these instructions (if any) shall require a prior written agreement between the parties.

3.2 Processor will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or Data Protection Legislation.

3.3 Controller shall ensure that Processor’s processing of the Personal Data in accordance with CONTROLLER's instructions will not cause Processor to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Legislation. Processor must promptly notify CONTROLLER if, in its opinion, CONTROLLER's instruction would not comply with Data Protection Legislation.

3.4 Processor is not responsible for compliance with any Data Protection Legislation applicable to CONTROLLER that is not generally applicable to Processor.

3.5 Processor will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless CONTROLLER or this Agreement specifically authorises the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires Processor to process or disclose Personal Data, Processor must first inform CONTROLLER of the legal or regulatory requirement and give CONTROLLER an opportunity to object or challenge the requirement, unless the law prohibits such notice.

4. Processor’s employees

4.1 Processor will ensure that all employees:

  • are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data;
  • have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
  • are aware both of Processor's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.

4.2 Processor will take reasonable steps to ensure the reliability, integrity and trustworthiness of and conduct background checks consistent with applicable law on all of Processor's employees with access to the Personal Data.

5. Security

5.1 Processor must at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.

5.2 Processor must implement such measures in accordance with Art. 32 of the General Data Protection Regulation ((EU) 2016/679), to ensure a level of security appropriate to the risk involved.

5.3 Controller hereby confirms that organisational and technical measures specified in Annex A are sufficient and appropriate under the Data Protection Legislation and this Agreement.

5.4 Notwithstanding the above, CONTROLLER agrees that except as provided by this DPA, CONTROLLER is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Personal Data when using Services, and taking any appropriate steps to securely encrypt or backup any Personal Data.

6 Personal Data Breach

6.1. Processor will promptly and without undue delay notify CONTROLLER if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. Processor will restore such Personal Data at its own expense.

6.2. Processor will immediately and without undue delay notify CONTROLLER if it becomes aware of:

  • any accidental, unauthorised or unlawful processing of the Personal Data; or
  • any Personal Data Breach.

6.3. Where Processor becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide CONTROLLER with the following information:

  • description of the causes and nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
  • the likely consequences; and
  • description of the measures taken or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.

6.4. Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Processor will reasonably co-operate with CONTROLLER in CONTROLLER's handling of the matter, including:

  • assisting with any investigation;
  • facilitating interviews with Processor's employees, former employees and others involved in the matter;
  • making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by CONTROLLER; and
  • taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.

6.5. Processor will not inform any third party of any Personal Data Breach without first obtaining CONTROLLER's prior written consent, except when required to do so by law.

6.6 Processor agrees that CONTROLLER has the sole right to determine:

  • whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in CONTROLLER's discretion, including the contents and delivery method of the notice; and
  • whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

6.7. Processor will cover all reasonable expenses associated with the performance of the obligations under clause 6.2 and clause 6.4 unless the matter arose from CONTROLLER's specific instructions, negligence, wilful default or breach of this Agreement, in which case CONTROLLER will cover all reasonable expenses.

7. Cross-border transfers of personal data

7.1. CONTROLLER hereby authorises Processor to transfer or otherwise process Personal Data outside the European Economic Area (EEA) subject to conditions laid down in this Agreement.

7.2. Processor shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws.

7.3. Processor may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:

  • Processor is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. Processor must identify in an additional annex hereto the territory that is subject to such an adequacy finding;
  • Processor takes, where appropriate, one of the safeguards specified by Data Protection Legislation, notably by Article 46 of the General Data Protection Regulation ((EU) 2016/679).

7.4. If any Personal Data transfer between CONTROLLER and Processor requires execution of SCC in order to comply with the Data Protection Legislation (where CONTROLLER is the person exporting Personal Data to Processor outside the EEA), the parties will abide the SCC which are incorporated in full by reference and form an integral part of this DPA.

7.5. The parties further agree that the SCCs will apply to Personal Data that is transferred from European Economic Area, either directly or via onward transfer, to any country or recipient that is not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Law.

8. Subcontractors

8.1. Processor may not authorise a third party (subcontractor) to process the Personal Data unless the following conditions are met:

  • CONTROLLER gave a specific authorisation to the engagement of the subcontractor(-s);
  • Processor enters into a written contract with each of the authorised subcontractors that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures;
  • Processor maintains control over all Personal Data it entrusts to the subcontractor(-s).

8.2. CONTROLLER hereby gives the specific authorisation to the engagement of subcontractors currently engaged by Processor.

8.3. In the case Processor intends to update the list of subcontractors engaged, he must inform CONTROLLER about the intended changes and obtain new authorisation first.

8.4. Where the subcontractor fails to fulfil its obligations under such written agreement, Processor remains fully liable to CONTROLLER for the subcontractor's performance of its agreement obligations.

8.5. Where Processor fails to fulfil its guarantees under clause 8.1, it shall indemnify all of the CONTROLLER’s arising direct and indirect damages.

8.6. The Parties consider Processor to control any Personal Data controlled by or in the possession of its subcontractors.

9. Complaints, data subject requests and third-party rights

9.1. Processor must, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to CONTROLLER as CONTROLLER may reasonably require, to enable CONTROLLER to comply with:

  • the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
  • information or assessment notices served on CONTROLLER by any supervisory authority under the Data Protection Legislation.

9.2.Processor must notify CONTROLLER immediately and without undue delay 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 Data Protection Legislation.

9.3.Processor must notify CONTROLLER immediately and without undue delay if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.

9.4.Processor will give CONTROLLER its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5.Processor must not disclose the Personal Data to any Data Subject or to a third party other than at CONTROLLER's request or instruction, as provided for in this Agreement or as required by law.

10. Term and termination

10.1. This Agreement will remain in full force and effect so long as:

  • the Terms of Use remains in effect, or
  • Processor retains and process any Personal Data in connection with, the Services provision under the Terms and Conditions in its possession or control (Term).

10.2. Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Terms of Use in order to protect Personal Data will remain in full force and effect.

10.3. If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Terms of Use 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 Data Protection Legislation within 2 (two) months, they may terminate the Terms of Use on written notice to the other party.

11. Data return and destruction

11.1. At CONTROLLER's request, Processor will give CONTROLLER a copy of or access to all or part of CONTROLLER's Personal Data in its possession or control in the format and on the media reasonably specified by CONTROLLER.

11.2. On termination of the Terms of Use for any reason or expiry of its term, Processor will securely delete or destroy or, if directed in writing by CONTROLLER, return and not retain, all or any Personal Data related to this Agreement in its possession or control, except for one copy that it may retain and use for 3 (three) years for audit purposes only.

11.3. If any law, regulation, or government or regulatory body requires Processor to retain any documents or materials that Processor would otherwise be required to return or destroy, it will notify CONTROLLER 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. Processor will certify in writing that it has destroyed the Personal Data within 30 days after it completes the destruction.

12. Audit

12.1. If CONTROLLER is required to show its compliance with Data Protection Legislation, reasonably believes that a Personal Data Breach occurred or is occurring, or Processor is in breach of any of its obligations under this Agreement or any Data Protection Legislation, Processor will permit CONTROLLER and its third-party representatives to audit Processor's compliance with its Agreement obligations, on at least 30 (thirty) days' notice, during the Term. Processor will give CONTROLLER and its third-party representatives all necessary assistance to conduct such audits. The assistance may include, but is not limited to:

  • physical access to, remote electronic access to any information held at Processor's premises or on systems storing Personal Data;
  • access to a communication with any of Processor's personnel reasonably necessary to provide all explanations and perform the audit effectively; and

12.2. If a Personal Data Breach occurs or is occurring, or Processor becomes aware of a breach of any of its obligations under this Agreement or any Data Protection Legislation, Processor will:

  • promptly conduct its own audit to determine the cause;
  • produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
  • provide CONTROLLER with a copy of the written audit report; and
  • promptly remedy any deficiencies identified by the audit.

12.3. Processor will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by Processor's management.

13. Warranties

13.1 Processor warrants and represents that:

  • its employees, subcontractors, agents and any other person or persons accessing Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation relating to the Personal Data;
  • it and anyone operating on its behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;
  • it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Services under the Terms of Use.

13.2. CONTROLLER warrants and represents that Processor's expected use of the Personal Data for the Services Purposes and as specifically instructed by CONTROLLER will comply with the Data Protection Legislation.

14. Final Provisions

14.1. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Terms of Use, unless required otherwise by applicable Data Protection Legislation.

14.2. Except for any changes made by this DPA, Terms of Use remains unchanged and in full force and effect.

A. Personal Data Processing Purposes and Details

Subject-matter and nature of processing: Processor will Process Personal Data as necessary to provide the services of the creation and administration of chatbots pursuant to the Terms of Use.

In course of the Services provision under the Terms of Use, CONTROLLER may create a chatbot that may be used for the leads generation, polls organisation, booking, registration or any other purpose determined by CONTROLLER. Personal Data gathered by CONTROLLER’s bots would be Processed by the Processor and further provided to the disposal of CONTROLLER.

Duration of Processing: Processor will process Personal Data as outlined in Section 10 (Term and Termination) of this DPA.

Purposes:

The Processor shall only process Personal Data that is necessary to provide the services of chatbots creation and administration in accordance with the Terms of Use to the CONTROLLER.

Data Subject Types:

CONTROLLER’s chatbots users;

Personal Data Categories:

CONTROLLER’s chatbots users: CONTROLLER’s chatbots users may upload, submit or otherwise provide certain personal data in the extent of which is typically determined and controlled by CONTROLLER in its sole discretion, and may include but not limited by the following types of personal data: username, full name, email address, LinkedIn profile link, phone number, employment details (employer, job title, geographic location, area of responsibility), education information, language spoken, link to the website, country of residence, country(-ies) of practice, name of the company, content of communications;

Security measures:

  • Access to data is limited by employees directly engaged in processing;
  • When appropriate, using encryption, SSL certificates and secure communication protocols;
  • Employees are aware and trained of data protection requirements;
  • Using a secure internet connection, where appropriate, VPN connection;
  • Implementing back-up schemes;
  • Password protection and management, access control; and
  • s
  • Using antiviruses and firewalls.

Processing Operations:

Personal Data will be processed in accordance with the Terms of Use (including this DPA) and may be subject to the following processing activities:

  • Collection, storage and other processing necessary to provide, maintain and improve the Services provided to Customer pursuant to the Terms of Use; and/or
  • Provision of Personal Data to CONTROLLER and other disclosures in accordance with the DPA and/or as compelled by applicable law.

ANNEX B

This Annex B is STANDARD CONTRACTUAL CLAUSES concluded in accordance with the European Commission’s 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 of the European Parliament and of the Council (2010/87/EU). This Annex forms an integral part of the Data Processing Agreement.

The CONTROLLER, as described in the DPA (the “data exporter”),
and
The Processor, “KRAVT HOLDINGS CY LTD”, a company with limited liability,
Address: EFI COURT, FLAT/OFFICE 202 LAZAROU KOUNTOURIOTI 6 LIMASSOL 3106
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 ANNEX A to the Agreement.

Clause 1

Definitions
  • ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘Controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in the applicable data protection law;
  • ‘subprocessor’ 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;
  • ‘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;
  • ‘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 3

Third-party beneficiary clause

The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A to the Agreement which forms an integral part of the Clauses.

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

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

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

4. The Parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the Data Exporter

The Data Exporter agrees and warrants:

  • that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the Data Exporter is established) and does not violate the relevant provisions of that State;
  • that it has instructed and throughout the duration of the personal data processing services will instruct the Data Importer to process the personal data transferred only on the Data Exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  • that the Data Importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Annex A;
  • 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;
  • that it will ensure compliance with the security measures;
  • that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC, and from 25 May 2018 within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation);
  • to forward any notification received from the Data Importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the Data Exporter decides to continue the transfer or to lift the suspension;
  • to make available to the data subjects upon request a copy of the Clauses and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  • that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the Data Importer under the Clauses; and
  • that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the Data Importer

The Data Importer agrees and warrants:

  • to process the personal data only on behalf of the Data Exporter and in compliance with its documented instructions and the Clauses; and it shall not disclose personal data transferred to third parties (including for back-up purposes) apart from sub-processors authorised by the Data Exporter under this Agreement. If the Data Importer 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 and/or take any other reasonable action;
  • 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;
  • that it has implemented the technical and organisational security measures specified in the Annex A before processing the personal data transferred;
  • that it will promptly notify the Data Exporter about:
    • any non-compliance by the Data Importer or its employees with this Agreement or the regulatory provisions relating to the protection of transferred personal data processed under this Agreement;
    • 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;
    • any accidental or unauthorised access;
    • any notice, inquiry or investigation by a supervisory authority; and
    • any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  • 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;
  • 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;
  • 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 in those cases where the data subject is unable to obtain a copy from the Data Exporter;
  • that, in the event of subprocessing, it has previously informed the Data Exporter and obtained its prior written consent;
  • that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  • to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the Data Exporter.

Clause 6

Liability

1. The Parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any Party or subprocessor is entitled to receive compensation from the Data Exporter for the damage suffered.

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

The Data Importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

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

Clause 7

Mediation and jurisdiction

1. The Data Importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the Data Importer will accept the decision of the data subject:

  • to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  • to refer the dispute to the courts in the Member State in which the Data Exporter is established.

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

Clause 8

Cooperation with supervisory authorities

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

2. The Parties agree that the supervisory authority has the right to conduct an audit of the Data Importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.

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

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the Data Exporter is established.

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 Clauses.

Clause 11

Subprocessing

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

2. The Data Exporter hereby gives to the Data Importer a specific authorisation to subcontract its processing operations on behalf of the Data Exporter under the Clauses to the persons currently engaged by Processor. The Data Importer shall communicate about any subsequent changes to the list to the Data Exporter and obtain new authorisation.

3. 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.

4. 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.

5. The Data Exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the Data Importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the Data Exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

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

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