Data Processing Addendum(fcc) Hosting Services
Data Processing Addendum
This Data Processing Addendum (this “Addendum”) is executed by and between Fastcomcorp, LLC. and you (“Customer”) and is annexed to and supplements our Terms of Service and any and all agreements governing Covered Services (collectively, the “Terms of Service”). Unless otherwise defined this Addendum, all capitalized terms not defined in this Addendum will have the meanings given to them in our Terms of Service.
“Covered Services” any hosted services we offer you that could involve our Processing of Personal Data.
“Customer Data” means the Personal Data of any Data Subject Processed by Fastcomcorp Hosting Services within the Fastcomcorp Hosting Services network on behalf of Customer pursuant to or in connection with the Terms of Service.
“Data Controller” means the Customer, as the entity which determines the purposes and means of the Processing of Personal Data.
“Data Processor” means Fastcomcorp Hosting Services, as the entity which Processes Personal Data on behalf of the Data Controller.
“Data Protection Laws” means all laws and regulations, including laws and regulations of the European Union or other countries data laws and regulations, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the individual to whom Personal Data relates.
“EEA” means the European Economic Area.
“Personal Data” means any information relating to an identified or identifiable person.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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. “Process”, “processes” and “processed” will be interpreted accordingly.
“Fastcomcorp Hosting Services Network” means Fastcomcorp’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within Fastcomcorp’s control and are used to provide the Covered Services.
“Security Incident” either (a) a breach of security of Fastcomcorp’s Security Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Data; or (b) any unauthorised access to Fastcomcorp Hosting Services equipment or facilities, where in either case such access results in destruction, loss, unauthorised disclosure, or alteration of Customer Data.
“Sub-processor” means any Data Processor engaged by Processor to Process data on behalf of Data Controller.
Affilient & Referral Program Rules
Account Transfer Request
II. Data Processing
This Addendum applies when Customer Data is processed by Fastcomcorp Hosting Services. In this context, Fastcomcorp Hosting Services will act as the Data Processor on behalf of the Customer as the Data Controller with respect to Customer Data.
The subject matter of processing of Customer Data by Fastcomcorp Hosting Services is the performance of the Covered Services pursuant to the Terms of Service and product-specific agreements. Fastcomcorp Hosting Services shall only Process Customer Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (1) Processing in accordance with the Terms of Service or applicable product-specific agreement; (2) Processing initiated by end users in their use of the Covered Services; (3) Processing to comply with other documented, reasonable instructions provided by Customers (ex. via support ticket or email) where such instructions are consistent with the terms of the Agreement. Fastcomcorp Hosting Services shall not be required to comply with or observe Customer’s instructions if such instructions would violate the GDPR or any other applicable data privacy laws. The duration of the Processing, the nature and purpose of the Processing, the types of personal data and categories of Data Subjects Processed under this Addendum are further specified in Annex 1 (‘Details of the Processing’) to this Addendum.
III. Confidentiality of Customer Data
Fastcomcorp Hosting Services will not disclose Customer Data to any government or any other third party, except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a subpoena or court order). If a law enforcement agency sends Fastcomcorp a demand for Customer Data, Fastcomcorp Hosting Services will attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Fastcomcorp Hosting Services may provide Customer’s basic contact information to the law enforcement agency. Except for data stored in Switzerland and Sweden. If compelled to disclose Customer Data to a law enforcement agency, then Fastcomcorp Hosting Services will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Fastcomcorp Hosting Services is legally prohibited from doing so.
Fastcomcorp Hosting Services has implemented and will maintain the technical and organisational measures for the Fastcomcorp Hosting Services Network as described herein this Section and as further described in Annex 2 to this Addendum, Security Standards. In particular, Fastcomcorp Hosting Services has implemented and will maintain the following technical and organisational measures that address the (1) security of the Fastcomcorp Hosting Services Network; (2) physical security of the facilities; (3) controls around employee and contractor access to (1) and/or (2); and (4) processes for testing, assessing and evaluating the effectiveness of technical and organizational implemented processes by Fastcomcorp Hosting Services.
Fastcomcorp Hosting Services makes available a number of security features and functionalities that Customer may elect to use in relation to the Covered Services. Customer is responsible for (1) properly configuring the Covered Services, (2) utilizing the controls available in connection with the Covered Services (including the security controls) to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (3) utilizing the controls available in connection with the Covered Services (including the security controls) to allow the Customer to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (4) taking such steps as Customer considers adequate to maintain appropriate security, protection, and deletion of Customer Data, which includes use of encryption technology to protect Customer Data from unauthorised access and measures to control access rights to Customer Data.
V. Data Subject Rights
Taking into account the nature of the Covered Services, Fastcomcorp Hosting Services offers Customer certain controls as described in the “Security” section of this Addendum that Customer may elect to use to retrieve, correct, delete or restrict use and sharing of Customer Data as described in the Covered Services. Customer may use these controls as technical and organisational measures to assist it in connection with its obligations under applicable privacy laws, including its obligations relating to responding to requests from Data Subjects. As commercially reasonable, and to the extent lawfully required or permitted, Fastcomcorp Hosting Services shall promptly notify Customer if Fastcomcorp Hosting Services directly receives a request from a Data Subject to exercise such rights under any applicable data privacy laws (“Data Subject Request”). In addition, where Customer’s use of the Covered Services limits its ability to address a Data Subject Request, Fastcomcorp Hosting Services may, where legally permitted and appropriate and upon Customer’s specific request, provide commercially reasonable assistance in addressing the request, at Customer’s cost (if there is any).
VI. Sub Data Processors
Customer agrees that Fastcomcorp Hosting Services may use Sub-processors to fulfil its contractual obligations under its Terms of Service and this Addendum or to provide certain services on its behalf, such as providing support services. Customer hereby consents to Fastcomcorp Hosting Services use of Sub-processors as described in this Section. Except as set forth in this Section or as otherwise explicitly authorized by you, Fastcomcorp Hosting Services will not permit any other sub-processing activities.
Sub Data Processor Agreement
When Fastcomcorp Hosting Services uses any authorised Sub-processor as described in Section 6.1: (1) Fastcomcorp Hosting Services will restrict the Sub-processor’s access to Customer Data only to what is necessary to maintain the Covered Services or to provide the Covered Services to Customer and any end users in accordance with the Covered Services. Fastcomcorp Hosting Services will prohibit the Sub-processor from accessing Customer Data for any other purpose; (2) Fastcomcorp Hosting Services will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor is performing the same data processing services that are being provided by Fastcomcorp Hosting Services under this Addendum, Fastcomcorp Hosting Services will impose on the Sub-processor the same contractual obligations that Fastcomcorp Hosting Services has under this Addendum; and (3) Fastcomcorp Hosting Services will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of the Sub-processor that cause Fastcomcorp Hosting Services to breach any of Fastcomcorp Hosting Services obligations under this Addendum.
VII. Security Breach
If Fastcomcorp Hosting Services becomes aware of a Security Incident, Fastcomcorp Hosting Services will without undue delay: (1) notify Customer of the Security Incident; and (2) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident.
Fastcomcorp Hosting Services will assist Customer in relation to any personal data breach notifications Customer is required to make under any applicable privacy laws.
Failed Security Incidents
Customer agrees that: (1) A failed Security Incident will not be subject to the terms of this Addendum. A failed Security Incident is one that results in no unauthorised access to Customer Data or to any of Fastcomcorp Hosting Services Network, equipment, or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers). (2) Fastcomcorp Hosting Services obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Fastcomcorp Hosting Services of any fault or liability of Fastcomcorp Hosting Services with respect to the Security Incident.
If Fastcomcorp Hosting Services notificaties a security incident to Customer, if any. It will be delivered to one or more of Customer’s administrators by any means Fastcomcorp Hosting Services selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the Fastcomcorp Hosting Services Account Center contact information at all times.
VIII. Customer Rights
Customer is responsible for reviewing the information made available by Fastcomcorp Hosting Services relating to data security and its Security Standards and making an independent determination as to whether the Covered Services meets Customer’s requirements and legal obligations as well as Customer’s obligations under this Addendum. The information made available is intended to assist Customer in complying with Customer’s obligations under applicable privacy laws, including the GDPR, in respect of data protection impact assessments and prior consultation.
Customer also has the right to confirm Fastcomcorp Hosting Services compliance with this Addendum as applicable to the Covered Services, including specifically its compliance with its Security Standards, by exercising a reasonable right to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by making a specific request to Fastcomcorp Hosting Services in writing to the address set forth in its Terms of Service. If Fastcomcorp Hosting Services declines to follow any instruction requested by Customer regarding a properly requested and scoped audit or inspection, Customer is entitled to terminate this Addendum and the Terms of Service. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses. This Section will also apply insofar as Fastcomcorp Hosting Services carries out the control of Sub-processors on behalf of the Customer.
IV. Personal Data Transfers
Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses will not apply where the data is transferred in accordance with a recognised compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA, such as the EU-US and Swiss-U.S Privacy Shield Frameworks. Customer Data will be transferred outside the EEA and processed in the United States.
This Addendum will continue in force until the termination of our processing in accordance with the Terms of Service (the “Termination Date”).
XI. Customer Deletion or Return of Data
Customer may be provided controls that may use to retrieve or delete Customer Data. Any deletion of Customer Data will be governed by the terms of the particular Covered Services.
XII. Limitations of Liability
The liability of each party under this Addendum will be subject to the exclusions and limitations of liability set out in the Terms of Service. Customer agrees that any regulatory penalties incurred by Fastcomcorp Hosting Services in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum and any applicable privacy laws will count towards and reduce Fastcomcorp Hosting Services liability under the Terms of Service as if it were liability to the Customer under the Terms of Service.
XIII. Addendum Conflict with Terms of Service
This Addendum supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Fastcomcorp Hosting Services, whether written or verbal, regarding the subject matter of this Addendum, including any data processing addenda entered into between Fastcomcorp Hosting Services and Customer with regard to the processing of personal data and on the free movement of such data. Except as amended by this Addendum, the Terms of Service will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Terms of Service and this Addendum. These terms of this Addendum will control.
This Addendum supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Fastcomcorp Hosting Services, whether written or verbal, regarding the subject matter of this Addendum, including any data processing addenda entered into between Fastcomcorp Hosting Services and Customer with regard to the processing of personal data and on the free movement of such data. Except as amended by this Addendum, the Terms of Service will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Terms of Service and this Addendum, the terms of this Addendum will control.
(1) Fastcomcorp Hosting Services will Process Personal Data as necessary to perform the Covered Services pursuant to the Terms of Service, product-specific agreements, and as further instructed by Customer throughout its use of the Covered Services.
(2) Fastcomcorp Hosting Services will Process Personal Data during the effective date of the Terms of Service, but will abide by the terms of this Addendum for the duration of the Processing if in excess of that term, and unless otherwise agreed upon in writing.
(3) Customer can upload Personal Data in the utilization of the Covered Services, the extent to which is determined and controlled by the Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Customer’s Users authorized by Customer to use the Covered Services
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees, agents, advisors, freelancers of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners and vendors
Customer may upload Personal Data in the course of its use of the Covered Services, the type of and extent to which is determined and controlled by Customer in its sole discretion, such as name, address, email, and other data collected that could directly or indirectly identify you.
(1) Our Commitment
We are committed to protect our customers’ information. By taking into account the best practices, the costs of implementation and the nature, scope, circumstances and purposes of processing as well as the different likelihood of occurrence and severity of the risk to the rights and freedoms of natural persons we take the following technical and organizational measures. When selecting the measures the confidentiality, integrity, availability and resilience of the systems are considered. A quick recovery after a physical or technical incident is guaranteed.
(2) Data Privacy Program
Our Data Privacy Program is established to maintain a global data governance structure and secure information throughout its lifecycle. This program is driven by the office of the data protection officer, which oversees the implementation of privacy practices and security measures. We regularly test, assess and evaluate the effectiveness of its Data Privacy Program and Security Standards.
I. Confidentiality: means that personal data is protected against unauthorized disclosure.
We utilize a variety of physical and logical measures to protect the confidentiality of its customers’ personal data. Those measures include:
- Physical Security
- Physical access control systems in place (Badge access control, Security event monitoring etc.)
- Surveillance systems including alarms and, as appropriate, CCTV monitoring
- Clean desk policies and controls in place (Locking of unattended computers, locked cabinets etc.)
- Visitor Access Management
- Destruction of data on physical media and documents (shredding, degaussing etc.)
- Access Control & Prevention of Unauthorized Access
- User access restrictions applied and role-based access permissions provided/reviewed based on segregation of duties principle
- Strong authentication and authorization methods (Multi-factor authentication, certificate based authorization, automatic deactivation/log-off etc. )
- Centralized password management and strong/complex password policies (minimum length, complexity of characters, expiration of passwords etc.)
- Controlled access to e-mails and the Internet
- Anti-virus management
- Intrusion Prevention System management
- Remote connections to the company networks are encrypted via VPN
- Securing the lifecycle of encryption keys
- Data Minimization
- Logical segregation of data by role based access rights
- Defined data retention periods for personal data
- Security Testing
- Penetration Testing for critical company networks and platforms hosting personal data
- Regular network and vulnerability scans
Integrity: means ensuring the correctness (intactness) of data and the correct functioning of systems. When the term integrity is used in connection with the term “data”, it expresses that the data is complete and unchanged. Appropriate log management and monitoring controls are in place. In order to maintain the integrity of personal data.
Availability: means availability of services and IT systems, IT applications, and IT network functions or of information is guaranteed, if the users are able to use them at all times as intended.
We implement appropriate continuity and security measures to maintain the availability of its services and the data residing within those services:
- Extensive performance/availability monitoring and reporting for critical systems
- Incident response programme
- Critical data either replicated or backed up
- Planned software, infrastructure and security maintenance in place
- Redundant and resilient systems located on off-site and/or geographically separated locations
- Use of uninterruptible power supplies, fail redundant hardware and network systems
- Alarm, security systems in place
- Physical Protection measures in place for critical sites
- DDOS protection to maintain availability
- Load & Stress Testing
IV: Data Processing Instruction
Data Processing Instructions means to ensure that personal data will only be processed in accordance with the instructions of the data controller and the related company measures. Also that privacy and confidentiality terms in place within contracts. Also that appropriate contractual provisions to the agreements with sub-contractors are in place to maintain instructional control rights Providing customers full control over their data processing preferences.
Standard Contractual Clauses
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 entity identified as “Customer” in the Addendum
(the “data exporter”)
(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.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘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;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable 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:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any 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;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for 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;
(i) 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
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
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 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, and when in doubt or where multiple data exporters, will be governed by the laws of England and Wales.
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.
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.
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.