Last Updated: March 25, 2020
This Data Protection Addendum (“Addendum”) forms part of the Agreement between the client (“Client”) and Mihi Software, LLC (“Company”).
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum.
1.1 In this Addendum, the following terms shall have the meanings set out below:
1.1.1 “Applicable Laws” means (a) European Union (EU) or Member State laws with respect to any Client Personal Data for which Client is subject to EU Data Protection Laws, including any act or regulation in any jurisdiction implementing the GDPR; and (b) any other applicable law with respect to any Client Personal Data for which Client is subject to any other Data Protection Laws;
1.1.2 “Client Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Client pursuant to or in connection with the Agreement;
1.1.3 “Contracted Processor” means Company or its Subprocessors;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and the data protection or privacy laws of any other country;
1.1.5 “Delete” means to remove or obliterate Personal Data such that it cannot be recovered or reconstructed;
1.1.6 “EEA” means the European Economic Area;
1.1.7 “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.8 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.9 “Restricted Transfer” means:
22.214.171.124 a transfer of Client Personal Data to a Contracted Processor; or
126.96.36.199 an onward transfer of Client Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses;
1.1.10 “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated under section 12.4;
1.1.11 “Subprocessor” means any person (including any third party, but excluding an employee of Company) appointed by or on behalf of Company to Process Personal Data on behalf of Client in connection with the Agreement; and
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.
2. Processing of Client Personal Data
2.1 Company shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Client Personal Data; and
2.1.2 not Process Client Personal Data other than on the Client’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Company shall to the extent permitted by Applicable Laws inform the Client of that legal requirement before Processing that Personal Data.
2.1.3 not be responsible for obtaining consent and providing notices. It shall be the Client’s responsibility to provide notice and take explicit consent from the data subject, by way of a clear affirmative action when dealing with sensitive data, cross-border data transfers, and profiling.
2.2 Client shall:
2.2.1 Instruct Company (and authorises Company to instruct each Subprocessor) to:
188.8.131.52 Process Client Personal Data; and
184.108.40.206 in particular, transfer Client Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement.
220.127.116.11 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 2.2.1 on behalf of each relevant Client Affiliate;
2.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Client Personal Data as required by article 28(3) of the GDPR. Client may make reasonable amendments to Annex 1 by written notice to Company from time to time as Client reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
3. Company Personnel
Company shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Client Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Client Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall in relation to the Client Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Company shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Client authorises Company to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any terms in the Agreement.
5.2 Company may continue to use those Subprocessors already engaged by Company as at the date of this Addendum, subject to Company meeting the obligations set out in section 5.4.
5.3 Company shall give Client prior notice of the appointment of any new Subprocessor including full details of the processing to be undertaken by the subprocessor and provide Client with a reasonable opportunity to object to any changes to Company’s Subprocessors.
5.4 With respect to each Subprocessor, Company shall:
5.4.1 before the Subprocessor first Processes Client Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Client Personal Data required by the Agreement;
5.4.2 ensure that the arrangement between Company and the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Client Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR; and
5.4.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between Company and Subprocessor, or before the Subprocessor first Processes Client Personal Data ensure that it enters into an agreement incorporating the Standard Contractual Clauses with the Client.
5.5 Company shall ensure that each Subprocessor performs the obligations under sections 2.1, 4, 5, 6.1, 7.2, 8 and 10.1, as they apply to Processing of Client Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Company.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, Company shall assist Client by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligations, as reasonably understood by Client, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Company shall:
6.2.1 promptly notify Client if any Contracted Processor receives a request from a Data Subject under any Data Protection Law with respect to Client Personal Data; and
6.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Client or as required by Applicable Laws to which the Contracted Processor is subject, in which case Company shall, to the extent permitted by Applicable Laws, inform Client of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Company shall notify Client without undue delay upon Company becoming aware of a Personal Data Breach affecting Client Personal Data, providing Client with sufficient information to allow it to meet any obligations to report or inform Data Subjects of the Personal Data Breach under applicable Data Protection Laws.
7.2 Company shall co-operate with Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Company shall provide reasonable assistance to Client with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Client reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Laws, in each case solely in relation to Processing of Client Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or Return of Client Personal Data
9.1 Company shall within six months of the date of cessation of any Services involving the Processing of Client Personal Data (the “Cessation Date”), at Client’s option either:
9.1.1 Delete all copies of those Client Personal Data, or
9.1.2 Return a complete copy of Client Personal Data to Client.
9.2 Company may retain certain Client Personal Data where required by Applicable Laws as set forth in Company’s Data Retention Policy and only to the extent and for such period as required by Applicable Laws and always provided that Company shall ensure that such Client Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage.
10. Audit Rights
10.1 Subject to section 10.2, Company shall make available to Client on request the information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Client or an auditor mandated by Client in relation to the Processing of the Client Personal Data by the Contracted Processors.
10.2 Client shall give Company reasonable notice of any audit or inspection to be conducted under section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable efforts to avoid causing any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
10.2.1 to any individual unless he or she produces reasonable evidence of identity and authority;
10.2.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Client has given notice to Company that this is the case before attendance outside those hours begins; or
10.2.3 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:
10.2.3.1 Client demonstrates as being necessary because of Company’s non-compliance with this Addendum; or
10.2.3.2 Client is required 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.
11. Restricted Transfers
11.1 Subject to section 11.3, each Client (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from Client to that Contracted Processor.
11.2 The Standard Contractual Clauses shall come into effect under section 11.1 on the later of:
11.2.1 the data exporter becoming a party to them;
11.2.2 the data importer becoming a party to them; and
11.2.3 commencement of the relevant Restricted Transfer.
11.3 Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps, is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12. General Terms
Governing law and jurisdiction
12.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
12.1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the 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
12.1.2 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 Agreement.
Order of precedence
12.2 Nothing in this Addendum reduces Company’s obligations under the Agreement in relation to the protection of Personal Data or permits Company to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
12.3 Subject to section 12.2, 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 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.
Changes in Data Protection Laws.
12.4 Client may:
12.4.1 with at least 60 days’ written notice to Company make any variations to the Standard Contractual Clauses, as they apply to Restricted Transfers subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
12.4.2 propose any other variations to this Addendum which Client reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.5 If Client gives notice under section 12.4.1:
12.5.1 Company shall co-operate with Client to ensure that equivalent variations are made to any agreement put in place under section 5.4.3; and
12.5.2 Client shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Company to protect the Contracted Processors against additional risks associated with the variations made under section 12.4.1 or 12.5.1.
12.6 If Client gives notice under section 12.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Client’s notice as soon as is reasonably practicable.
12.7 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(s) shall be either (i) amended as necessary to ensure its/their validity and enforceability, while preserving 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(s) had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF CLIENT PERSONAL DATA
This Annex 1 includes certain details of the Processing of Client Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Client Personal Data
The subject matter and duration of the Processing of the Client Personal Data are set out in the Agreement and this Addendum.
The nature and purpose of the Processing of Client Personal Data
The collection, inputting, storage, accessing, retrieval, consultation, use, analysis, communication and assessment of the personal data.
The types of Client Personal Data to be Processed
Identification information (such as name, age, date of birth, demographic information and government-issued identification information);
Contact information (such as home and work addresses, telephone numbers and email addresses);
Job-related information (such as title, position, office location, work history, HR data, salary, benefits, and taxes).
The categories of Data Subject to whom the Client Personal Data relates
Current and former employees subject to the Services
The obligations and rights of Client
The obligations and rights of Client are set out in the Agreement and this Addendum.
ANNEX 2: 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.
The Client (the data exporter)
Name of the data importing organisation: Mihi Software, LLC
Address: 809-B Cuesta Drive, Suite 2172, Mountain View, CA 94040
Tel.: 408.219.8203; fax: 650.560.6368; e-mail: DPO@globalupside.com
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.
The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
For the purposes of the Clauses:
1. ‘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;
2. ‘the data exporter’ means the controller who transfers the personal data;
3. ‘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;
4. ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
5. ‘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 jurisdiction in which the data exporter is established;
6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
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.
Obligations of the data exporter
The data exporter agrees and warrants:
1. 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 jurisdiction where the data exporter is established) and does not violate the relevant provisions of that State;
2. 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;
3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
4. 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;
5. that it will ensure compliance with the security measures;
6. 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;
7. 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;
8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
9. 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
10. that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
1. 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;
2. 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;
3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
4. that it will promptly notify the data exporter about:
a. 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,
b. any accidental or unauthorised access, and
c. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
5. 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;
6. 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;
7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the jurisdiction in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the jurisdiction in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business-related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such a written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the jurisdiction in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The data exporter is: Client
The data importer is: Company
The personal data transferred concern the following categories of data subjects:
Employees of data exporter
Categories of data
The personal data transferred concern the following categories of data:
Employees’ personal data for setting up and processing payroll on an ongoing basis.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
The personal data transferred will be subject to the following basic processing activities:
Processing of payroll
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 4.3 and 4.8 and 5.3 of Annex 2:
Company restricts access to Client Data to Client, its Users and Company, including Data Subjects and any subcontractor used to provide the Services. In addition, Company has taken appropriate actions and has processes to ensure that any system containing or accessing the Client’s Data is protected against Information Protection Incidents and other security breaches or failures.
Company will make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data.
Company ensures physical and security of its networks, servers, cloud and other information systems in which Client Data is stored, processed, transmitted, or accessed are maintained in a secure manner that satisfies the requirements of this Schedule.
Company reviews information technology security measures annually. On an annual basis, a qualified independent third-party conducts penetration tests of Company’s system for security vulnerabilities. Additionally, Company on a quarterly basis conducts penetration tests of Company’s system for security vulnerabilities. Company maintains suitable processes to identify, isolate and remediate security vulnerabilities.
Upon request Company will provide Client with an annual report of its internal controls in conformance with the ISO 27001 certification. Company will promptly address any exceptions noted on such reports by developing and implementing a corrective action plan.