Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms. In this DPA, the following terms shall have the following meanings:“CCPA” shall mean the California Consumer Privacy Act of 2018.
“Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including but not limited to (a) laws and regulations applicable to the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) in each case, as may be amended, superseded or replaced.
“GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” shall mean any information relating to an identified or identifiable natural person Processed by Rocketlane as part of providing the services to You as described in an Appendix.
“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.
“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EU SCCs”); (ii) where the UK GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (2010/87/EC) of 05 February 2021), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32010D0087 and modified in accordance with Appendix IV (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).
“Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws
“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.
2.1.This DPA applies to Processing of Personal Data forming a part of the Customer Data.
2.2.Rocketlane shall Process Personal Data only on Your behalf and at all times only in accordance with this DPA, especially the respective Appendix. For the avoidance of doubt, Rocketlane shall be the Processor and You shall be the Controller of the Personal Data.
2.3.Within the scope of the Terms, each party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.
3.1.This DPA becomes effective upon You subscribing to the Services by agreeing to the Terms. It shall continue to be in full force and effect as long as Rocketlane is Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.
3.2.Where amendments are required to ensure compliance of this DPA or an Appendix with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either party may terminate the Terms in accordance with the termination procedure contained therein.
4.1.Rocketlane will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to Rocketlane. The Parties agree that You may communicate any change in your initial instructions to Rocketlane by way of amendment to this DPA, which shall be signed by the Parties.
4.2.For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties.
4.3.Rocketlane shall without undue delay inform You in writing if, in Rocketlane's opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.
Rocketlane will restrict its personnel from Processing Personal Data without authorization. Rocketlane will impose appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
6.1.Rocketlane will not disclose Personal Data to any government agency, court, or law enforcement except with Your written consent or as necessary to comply with applicable mandatory laws. If Rocketlane is obliged to disclose Personal Data to a law enforcement agency, then Rocketlane agrees to give You reasonable notice of the access request prior to granting such access, to allow You to seek a protective order or other appropriate remedy. If such notice is legally prohibited, Rocketlane will take reasonable measures to protect the Personal Data from undue disclosure as if it were Rocketlane’s own confidential information being requested and shall inform You promptly as soon as possible if and when such legal prohibition ceases to apply.
6.2.In case You receive any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), Rocketlane shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by You.
6.3.Where Rocketlane receives a Request, Rocketlane shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You.
Rocketlane shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs") as specified in Appendix II hereto.
In respect of any Personal Data Breach (actual or reasonably suspected), Rocketlane shall:
10.1.notify You of a Personal Data Breach involving Rocketlane or a subcontractor without undue delay and it shall be Your responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by Rocketlane;
10.2.provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.
11.1.You consent to Rocketlane engaging third party sub-processors as indicated in Appendix 1 to Process Personal Data to fulfil its obligations under the Terms provided that, Rocketlane will provide at least fifteen (15) days’ notice to Your account administrator prior to the appointment or replacement of any sub-processor. You may object to Rocektlane’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, Rocketlane will either not appoint or replace the sub-processor or, if this is not possible, You or Rocketlane may suspend or terminate the Service(s) (without prejudice to any fees incurred by You prior to such suspension or termination).
11.2.Where Rocketlane, with Your consent, subcontracts its obligations and rights under this DPA it shall do so only by way of a binding written contract with the sub-processor which imposes essentially the same obligations according to Art. 28 GDPR especially with regard to instructions and TOMs on the sub-processor as are imposed on Rocketlane under this DPA.
11.3.Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, Rocketlane shall remain fully liable to You for the fulfilment of its obligations under this DPA and for the performance of the sub-processor 's obligations.
12.1.The Parties agree that when the transfer of Personal Data from You to Rocketlane is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this DPA as follows:
12.1.a In relation to transfers of Personal Data originating from the EEA and subject to the GDPR, the EU SCCs shall apply, completed as follows:
12.1.a.i Module 2 (Controller to Processor) shall apply where You are a Controller and Rockelane is a Processor;
12.1.a.ii in Clause 7, the optional docking clause will apply;
12.1.a.iii in Clause 11, the optional language will not apply;
12.1.a.iv in Clause12.1.a.iv 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
12.1.a.v in Clause 18(b), disputes shall be resolved before the courts of Ireland;
12.1.a.vi Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
12.1.a.vii Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
12.1.a.viii Annex III of the EU SCCs shall be deemed completed with the information set out in Appendix III to this DPA
12.1.b In relation to transfers of Personal Data originating Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications and constitute the Swiss SCCs:
12.1.b.i references to Regulation (EU) 2016/679; shall be interpreted as references to the Swiss DPA;
12.1.b.ii references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent section of the Swiss DPA;
12.1.b.iii references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”;
12.1.b.iv the term “member state” shall not be interpreted in such a way as to exclude data subjects in
Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);
12.1.b.v Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the Swiss Federal Data Protection Information Commissioner;
12.1.b.vi references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
12.1.b.vii in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and
12.1.b.viii Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
12.1.b.ix Annex I of the Swiss SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
12.1.b.x Annex II of the Swiss SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
12.1.b.xi Annex III of the Swiss SCCs shall be deemed completed with the information set out in Appendix III to this DPA
12.1.c In relation to transfers of Personal Data originating from the UK and subject to the UK GDPR, the UK SCCs shall apply.
12.1 For the purposes of descriptions in the SCCs, You agree that You are the “data exporter” and Rocketlane is the “data importer”.
12.2 The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Laws requires the adoption of an alternative transfer solution, the data exporter and data importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.
Upon termination of Your Account, Rocketlane may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that Rocketlane is permitted by applicable law to retain some or all of the Personal Data, in which event Rocketlane shall isolate and protect the Personal Data from any further processing except to the extent as required by such law.
You acknowledge and agrees that it is the Business and Rocketlane is the Service Provider with respect to any Personal Information of Consumers (as those terms are understood under the CCPA) forming part of Your Data. Rocketlane will not sell, retain, use, or disclose Personal Information of Consumers that Rocketlane processes on Your behalf when providing the Services under the Terms for any purpose other than for the specific purpose of providing the Services in accordance with the Terms and as part of the direct relationship between Rocketlane and You. Rocketlane certifies that it understands the restrictions in this clause 14 and will comply with such restrictions.
15.1.In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with Rocketlane. In case of any conflict between the DPA and the SCCs, the SCCs shall take precedence over the provisions of the rest of the DPA.
15.2.No party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
15.3.Where this DPA requires a “written notice” such notice can also be communicated per email to the other party. Notices shall be sent to the contact persons set out in Appendix 1.
15.4.Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
15.5.Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.
The following Appendices forms an integral part of this DPA:
Data exporter(s): The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms. Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Name :Rocketlane Corp.
Address:340S, Lemon Avenue, #4560, Walnut, California - 91789
Contact person’s name,
position and contact details: Name: Srikrishnan Ganesan Email: email@example.com
Activities relevant to the data transferred under these Clauses: As specified in Part B.
Signature and data: By entering into the Agreement, Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role (Controller / Processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.
Categories of personal data transferred
The transferred Personal Data concerns the following categories of data:
Customer determines the categories of data and/or data fields which could be transferred per Rocketlane’s Services as stated in the relevant Agreement. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorised personnel.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No Sensitive Personal Information transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Data to the data importer for processing.The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Data is transferred on a continuous basis
Nature of the processing
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 of data (whether or not by automated means).
Purpose(s) of the data transfer and further processing
Personal Data is transferred in the course of access and use of the data exporter’s Service so that the data importer may provide, support, maintain and improve the Service.The data importer may further transfer personal data to third-party service providers that host and maintain the data importer’s applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or process personal data for the purpose of providing these services to the data importer.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Upon termination or expiry of the Terms, Rocketlane shall delete all Customer Data including Personal Data in accordance with the procedure contained in the Terms. This requirement shall not apply to the extent that Rocketlane is required by applicable law to retain some or all of the Personal Data, in which event Rocketlane shall isolate and protect the Personal Data from any further processing except to the extent required by such law.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:
Module 2: Transfer Controller to Processor
Where Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the SCCs.
Appendix II – Technical and Organisational Security Measures
Rocketlane has implemented and shall maintain a security program in accordance with industry standards. Rocketlane has implemented and will maintain appropriate TOMS to protect Service Data from a Personal Data Breach. Reach out to us at firstname.lastname@example.org for our security policy document.
Appendix III – List of Sub-processors
As set out in Part B to Appendix I.
Appendix IV: UK SCCs
2010 EU Model clauses extracted from 2010/87/EU Annex EU Standard Contractual Clauses for the transfer of personal data to data processors established in third countries which do not ensure an adequate level of data protection
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 UK GDPR;
b. the "data exporter" means the entity 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 covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;
c. 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 UK; and
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.
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 I which forms an integral part of the Clauses.
3. Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1(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.
3.2 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.
3.3 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 sub- processor shall be limited to its own processing operations under the Clauses.
3.4 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.
4. Obligations of the data exporter
4.1 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 II to this contract;
d. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
e. that it will ensure compliance with the security measures;
f. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;
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 II, 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).
5. Obligations of the data importer
5.1 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 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 II before processing the personal data transferred;
d. that it will promptly notify the data exporter about:
d.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;
d.ii. any accidental or unauthorised access; and
d.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 II 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 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.
6.1 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.
6.2 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 or 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.
6.3 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.
7. Mediation and jurisdiction
7.1 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 UK courts.
7.2 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.
8. Co-operation with supervisory authorities
8.1 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.
8.2 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.
8.3 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).
9. Governing law
The Clauses shall be governed by the law of the country of the United Kingdom in which the data exporter is established, namely England and Wales.
10. Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from (i) making changes permitted by Paragraph 7(3) & (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.
11.1 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. Where the sub-processor 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 sub-processor’s obligations under such agreement.
11.2 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.
11.3 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 England and Wales.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
12. Obligation after the termination of personal data-processing services
12.1 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.
11.2 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.
This agreement has been entered into on the date shown at the beginning of the first page of this agreement.