Data Processing Addendum

Updated: July 29, 2021

The customer agreeing to these terms (“Customer“) has entered into an agreement with Chord Commerce, Inc. (“Chord”) and accepted Chord’s Terms of Service under which Chord has agreed to provide services to Customer (as amended from time to time, the “Agreement“). Capitalized terms used but not defined within this Data Protection Addendum shall have the meaning set forth in the Agreement.

This Data Protection Addendum, including its attachments (the “Addendum“) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement and consists of (a) the main body of the Addendum; (b) Attachment 1 (Subject Matter and Details of the Data Processing); (c) Attachment 2 (Security Measures) and (d) Attachment 3 (the Model Contract Clauses).

  1. Definitions

For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.

  1. Addendum Effective Date” means the date on which the parties agreed to the Agreement.
  2. Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
  3. Audit Reports” has the meaning given in Section 5.4.4.
  4. CCPA” means the California Consumer Privacy Act of 2018.
  5. Controller” has the meaning given in Section 3.1.1(c).
  6. Customer Data” means any “personal information”, “personal data” or other similar term as defined under applicable data protection or incident notification laws that is contained within the data provided to or accessed by Chord by or on behalf of Customer or Customer end users in connection with the Services.
  7. Europe” means the European Economic Area, Switzerland, and United Kingdom
  8. European Data Protection Legislation” means the GDPR and other data protection laws of Europe, applicable to the Processing of Customer Data under the Agreement.
  9. GDPR” means the UK General Data Protection Regulation and 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.
  10. Information Security Incident” means a breach of Chord’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data in Chord’s possession, custody or control, to the extent the incident constitutes a reportable “data breach,” “personal data breach,” “breach of the security of the system,” or other similar term as defined under applicable law. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
  11. Model Contract Clauses” or “MCCs” mean the standard data protection clauses for the transfer of personal data to Processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR, a copy of which are attached as Attachment 3.
  12. Processing” means any operation or set of operations which is performed on Customer Data or on sets of Customer Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  13. Processor” has the meaning given in Section 3.1.1(b).
  14. Security Documentation” means all documents and information made available by Chord under Section 5.4.1 (Reviews of Security Documentation).
  15. Security Measures” has the meaning given in Section 5.1.1 (Chord’s Security Measures).
  16. Services” means the services and/or products to be provided by Chord to Customer under the Agreement.
  17. Subprocessors” means third parties authorized under this Addendum to Process Customer Data in relation to the Services.
  18. Term” means the period from the Addendum Effective Date until the end of Chord’s provision of the Services.
  19. Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
  20. “Transfer Solution” means the Model Contract Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR.
  1. Duration of Addendum.

This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Chord’s deletion of all Customer Data as described in this Addendum.

  1. Processing of Data
  1. Roles and Regulatory Compliance; Authorization.
  1.  Processor and Controller Responsibilities.
  1. The subject matter and details of the Processing are described in Attachment 1;
  2. Chord serves as a “Processor” or service provider, meaning that Chord Processes Customer Data at the direction of and on behalf of the Controller;
  3. Customer is a “Controller”, meaning that Customer, or an entity for which Customer is a representative (as set out in Section 3.1.2 below), alone or with others, determines the purposes and means of the Processing of Customer Data; and
  4. Each party will comply with the obligations applicable to it under applicable law with respect to the Processing of that Customer Data.
  1.  Authorization by Third Party Controller. If Customer is providing data to Chord as a representative for or on behalf of another entity acting as a Controller, Customer warrants to Chord that Customer’s instructions and actions with respect to that Customer Data, including its appointment of Chord as another Processor, have been authorized by the relevant Controller in accordance with applicable law.
  1. Scope of Processing.
  1.  Customer’s Instructions. By entering into this Addendum, Customer instructs Chord to Process Customer Data only in accordance with applicable law: (a) to provide the Services; (b) as set out in Chord’s Privacy Policy; (c) as authorized by the Agreement, including this Addendum; and (d) as further documented in any other written instructions given by Customer and acknowledged in writing by Chord as constituting instructions for purposes of this Addendum.
  2.  Chord’s Compliance with Instructions. Chord will only Process Customer Data to provide the Services in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless applicable law requires Chord to otherwise Process Customer Data, in which case Chord will notify Customer (unless that law prohibits Chord from doing so on important grounds of public interest).
  3.  Chord Certification. Chord certifies that it understands the restrictions of this Section 3.2, that it shall only use the Customer Data to provide the Services in accordance with Customer’s instructions described in Section 3.2.1 and will not (a) “sell” (as defined in the CCPA) the Customer Data or (b) otherwise retain, use, or disclose the Customer Data for any purpose other than for the specific purpose of providing the Services under the Agreement.
  1. Data Deletion
  1. Deletion on Termination. On expiry of the Term, Customer instructs Chord to delete all Customer Data (including existing copies) from Chord’s systems in accordance with applicable law as soon as reasonably practicable but no later than 180 days from the date of request, unless applicable law requires otherwise.
  1. Data Security
  1. Chord’s Security Measures, Controls and Assistance.
  1. Chord’s Security Measures. Chord will implement and maintain technical and organizational measures designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data as described in Attachment 2 (the “Security Measures“). Chord may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
  2. Security Compliance by Chord Staff. Chord will grant access to Customer Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
  3. Chord’s Security Assistance. Chord will (taking into account the nature of the Processing of Customer Data and the information available to Chord) provide Customer with reasonable assistance necessary for Customer to comply with its obligations under applicable data protection laws, by:
  1. implementing and maintaining the Security Measures in accordance with Section 5.1.1 (Chord’s Security Measures);
  2. complying with the terms of Section 5.2 (Information Security Incidents); and
  3. providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Addendum.
  1. Information Security Incidents
  1. Information Security Incident Notification. If Chord becomes aware of an Information Security Incident, Chord will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the cause of such Information Security Incident, minimize harm and prevent a recurrence.
  2. Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Chord recommends Customer take to address the Information Security Incident.
  3. Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).
  4. No Acknowledgement of Fault by Chord. Chord’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by Chord of any fault or liability with respect to the Information Security Incident.
  1. Customer’s Responsibilities and Assessment.
  1. Customer’s Compliance Responsibilities. Customer represents and warrants:
  1. that Customer is solely responsible for its Customer Data, including without limitation, the security of such Customer Data;
  2. that Customer has the necessary rights and licenses, consents, permissions, waivers and releases to use the Customer Data and to enable Chord to use and disclose to Customer the Customer Data as intended by the parties under the Agreement and the terms of any applicable Service Orders;
  3. that Customer has a legally sufficient privacy policy or privacy notice that is made available to customers prior to their provision of any Customer Data to Customer or Chord;
  4. that use by Chord of Customer Data:
  1. does not violate, misappropriate or infringe any rights of Chord or any third party,
  2. does not constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, and
  3. is not designed for use in any illegal activity or does not promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; or
  4. does not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
  1. Customer’s Security Responsibilities. Customer agrees that, without prejudice to Chord’s obligations under Section 5.1 (Chord’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):
  1. Customer is solely responsible for its use of the Services, including:
  1. making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data;
  2. securing the account authentication credentials, systems and devices Customer uses to access the Services;
  3. securing Customer’s systems and devices; and
  4. backing up its Customer Data.
  1. Chord has no obligation to protect Customer Data that Customer elects to store or transfer outside of Chord’s and its Subprocessors’ systems (for example, offline or on-premises storage).
  1. Customer’s Security Assessment.
  1. Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and Chord’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under applicable law.
  2. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing of Customer Data as well as the risks to individuals) the Security Measures implemented and maintained by Chord as set out in Section 5.1.1 (Chord’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
  1. Reviews and Audits of Compliance
  1. Customer may audit Chord’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by applicable data protection laws, including where mandated by Customer’s regulatory or governmental authority, Customer or Customer’s regulatory or governmental authority may perform more frequent audits (including inspections). Chord will contribute to such audits by providing Customer or Customer’s regulatory or governmental authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of Processing activities applicable to the Services.
  2. If a third party is to conduct the audit, Chord may object to the auditor if the auditor is, in Chord’s reasonable opinion, not suitably qualified or independent, a competitor of Chord, or otherwise manifestly unsuitable. Such objection by Chord will require Customer to appoint another auditor or conduct the audit itself.
  3. To request an audit, Customer must submit a detailed proposed audit plan to [email protected] at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Chord will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Chord security, privacy, employment or other relevant policies). Chord will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require Chord to breach any duties of confidentiality.
  4. If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports“) within twelve (12) months of Customer’s audit request and Chord confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
  5. The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Chord’s health and safety or other relevant policies, and may not unreasonably interfere with Chord business activities.
  6. Customer will promptly notify Chord of any non-compliance discovered during the course of an audit and provide Chord any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by applicable law or otherwise instructed by a regulatory or governmental authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are Confidential Information of the parties under the terms of the Agreement.
  7. Any audits are at Customer’s expense. Customer shall reimburse Chord for any time expended by Chord or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at Chord’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
  8. The parties agree that this Section 5.4 shall satisfy Chord’s obligations under applicable data protection laws, including the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Subprocessors under Clause 11 and Clause 12(2).
  1. Impact Assessments and Consultations.

Chord will (taking into account the nature of the Processing and the information available to Chord) reasonably assist Customer in complying with its obligations under European Data Protection Legislation or other applicable law in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:

  1. Making available for review copies of the Audit Reports or other documentation describing relevant aspects of Chord’s information security program and the security measures applied in connection therewith; and
  2. providing the information contained in the Agreement including this Addendum.
  1. Data Subject Rights
  1. Customer’s Responsibility for Requests. During the Term, if Chord receives any request from a data subject in relation to Customer Data, Chord will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.
  2. Chord’s Data Subject Request Assistance. Chord will (taking into account the nature of the Processing of Customer Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfill its obligation under applicable law to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in the European Data Protection Legislation or CCPA. Customer shall reimburse Chord for any such assistance beyond providing self-service features included as part of the Services at Chord’s then-current professional services rates, which shall be made available to Customer upon request.
  1. Data Transfers
  1. Data Storage and Processing Facilities. Chord may, subject to Section 8.2 (Transfers of Data Out of Europe), store and Process Customer Data anywhere Chord or its Subprocessors maintains facilities.
  2. Transfers of Data Out of Europe.
  1. Chord’s Transfer Obligations. If the storage and/or Processing of Customer Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Data out of Europe to Chord in the United States, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data“), Chord will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.
  2. Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation Chord reasonably requires Customer to enter into Model Contract Clauses or use another Transfer Solution offered by Chord, and reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.
  1. Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 8.2 (Transfers of Data Out of Europe), Chord will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Model Contract Clauses. For the purposes of the Model Contract Clauses, Customer and Chord agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) Chord or its relevant Affiliate will act on its own behalf and/or on behalf of Chord’s Affiliates as the data importers.
  1. Subprocessors
  1. Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Chord’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors“). If Customer has entered into Model Contract Clauses as described in Section 8.2 (Transfers of Data Out of Europe), the above authorizations will constitute Customer’s prior written consent to the subcontracting by Chord of the Processing of Customer Data if such consent is required under the Model Contract Clauses.
  2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available here [c](as may be updated by Chord from time to time in accordance with this Addendum).
  3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, Chord will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Subprocessor. Chord shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
  4. Opportunity to Object to Subprocessor Changes. When any new Third Party Subprocessor is engaged during the Term, Chord will, at least 30 days before the new Third Party Subprocessor Processes any Customer Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the list identified in Section 9.2. Customer may object to any new Third Party Subprocessor by providing written notice to Chord within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. In the event Customer objects to a new Third Party Subprocessor, Customer and Chord will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Chord.
  1. Processing Records
  1. Chord’s Processing Records. Customer acknowledges that Chord may be required under applicable law to: (a) collect and maintain records of certain information, including the name and contact details of each Processor and/or Controller on behalf of which Chord is acting and, where applicable, of such Processor’s or Controller’s local representative and data protection officer; and (b) make such information available to regulatory or governmental authorities. Accordingly, to the extent that any such requirement applies to the Processing of Customer Data, Customer will, where requested, provide such information to Chord, and will ensure that all information provided is kept accurate and up-to-date.
  1. Liability
  1. Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Model Contract Clauses if entered into as described in Section 8.2 (Transfers of Data Out of Europe) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
  2. Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Model Contract Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation, where applicable.
  1. Third Party Beneficiary

Notwithstanding anything to the contrary in the Agreement, where Chord is not a party to the Agreement, Chord will be a third party beneficiary of Section 5.4 (Reviews and Audits of Compliance), Section 9.1 (Consent to Subprocessor Engagement) and Section 11 (Liability) of this Addendum.

  1. Analytics

Customer acknowledges and agrees that Chord may create and derive from Processing related to the Services anonymized and/or aggregated data that does not identify Customer or any natural person, and use, publicize or share with third parties such data to improve Chord’s products and services and for its other legitimate business purposes.

  1. Notices

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Chord to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to Chord’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

  1. Effect of These Terms

Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.

Attachment 1
Subject Matter and Details of the Data Processing

Subject Matter: Chord’s provision of the Services to Customer.

Duration of the Processing: The Term plus the period from the expiry of the Term until deletion of all Customer Data by Chord in accordance with the Addendum.

Nature and Purpose of the Processing: Chord will process Customer Data for the purposes of providing the Services to Customer in accordance with the Addendum.

Categories of Data: Data relating to individuals provided to Chord in connection with the Services, by (or at the direction of) Customer.

Attachment 2
Security Measures

As from the Addendum Effective Date, Chord will implement and maintain the security measures set out in this Attachment 2. Chord may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

  1. Organizational management and dedicated staff responsible for the development, implementation and maintenance of Chord’s information security program.
  2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Chord’s organization, monitoring and maintaining compliance with Chord’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
  3. Data security controls which include at a minimum, but may not be limited to, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data that is:
  1. being transmitted by Chord over public networks (i.e., the Internet) or when transmitted wirelessly; or
  2. at rest or stored on portable or removable media (i.e., laptop computers, CD/DVD, USB drives, back-up tapes).
  1. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g., granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
  2. Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Chord’s passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on Chord’s computer systems; (iii) must be changed every ninety (90) days; must have defined complexity; (v) must have a history threshold to prevent reuse of recent passwords; and (vi) newly issued passwords must be changed after first use.
  3. System audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review.
  4. Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Chord’s possession.
  5. Change management procedures and tracking mechanisms designed to test, approve and monitor all changes to Chord’s technology and information assets.
  6. Incident / problem management procedures design to allow Chord to investigate, respond to, mitigate and notify of events related to Chord’s technology and information assets.
  7. Network security controls that provide for the use of enterprise firewalls and layered DMZ architectures, and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
  8. Vulnerability assessment, patch management and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
  9. Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.

Attachment 3
Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation:

Customer and/or its affiliates operating in the countries which comprise the European Economic Area and/or Switzerland and/or in any other country which accepts the EU Model Clauses, which are data controllers and transfer personal data to the data importer. Customer signs these Clauses on its behalf and on behalf of any such affiliates, each a “data exporter“.

If other Customer affiliates wish to enter into these Clauses with the data importer, Customer shall notify the data importer in writing and upon receipt of such notice, the relevant subsidiary shall be deemed to have signed these Clauses with the data importer.

Customer executes these Clauses on behalf of each data exporter and each data exporter thereby enters into a separate agreement with the data importer, which shall in each case be governed by the law of the Member State in which the relevant data exporter is established.

and

Name of the data importing organisation: Chord Commerce, Inc.

Address: 33 Irving Place, New York, New York 10003

Tel.: 951.453.0680

(the data importer)

each a party; together the parties,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

For the purposes of the Clauses:

  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 and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  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 Member State 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.

Clause 2
Details of the transfer

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

Clause 3
Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the 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:

  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 Member State 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 within the meaning of Directive 95/46/EC;
  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).

Clause 5
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:
  1. 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,
  2. any accidental or unauthorised access, and
  3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  1. 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;
  2. 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;
  3. 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;
  4. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  5. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  6. 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.
  3. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  4. 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:
  1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  1. 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 Clause.

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 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.
  3. 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.
  4. 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.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

The details of the processing are set out in Attachment 1 of the Data Protection Addendum to which these Clauses are appended.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

The security measures are set out in Attachment 2 of the Data Protection Addendum to which these Clauses are appended.