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Data Processing Addendum

THIS DATA PROCESSING ADDENDUM("DPA”) is made and entered by and between the Company or its Affiliate performing Services (herein after referred to as "Processor”) and Client. Unless otherwise defined in this DPA, the capitalized terms set forth herein shall have the meanings set forth in these General Terms. This DPA may refer to either the Processor or Client, as applicable, as a "Party” or collectively as the "Parties”.

  1. Definitions. Unless otherwise defined, capitalized terms used herein shall carry the following meanings:
    1. "California Consumer Privacy Act of 2018” or "CCPA” means Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018”s.
    2. "Contracted Processor" means the Processor or a Subprocessor.
    3. "Client” means the Client identified in the Service Order.
    4. "Client Content” means any data, file attachments, text, images, reports, personal information, or other content that is transferred to Contracted Processor by the Client. For the avoidance of doubt, Client Content does not include usage, statistical, or technical information that does not reveal the actual contents of the Client Content;
    5. "Data Protection Laws" means the CCPA, the EU Data Protection Laws (hereinafter defined) and, to the extent applicable, the data protection or privacy laws of any other state, province, or country;
    6. "Data Subject” means (i) an identified or identifiable natural person who is in the EEA or whose rights are protected by the GDPR; or (ii) a "Consumer” as the term is defined in the CCPA;
    7. "Data Subject Rights” means those rights identified in the GDPR and the CCPA granted to Data Subjects;
    8. "EEA" means the European Economic Area;
    9. "EU Data Protection Laws" means Regulation 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 ("General Data Protection Regulation” or "GDPR”), as transposed into domestic legislation of each Member State and the laws implementing the GDPR;
    10. "Personal Data” means Client Content that directly or indirectly identifies or relates to a Data Subject;
    11. "Privacy Shield” means the EU-U.S. and Swiss-U.S. Privacy Shield self-certification programs approved by the European Commission (Decision of 12th July 2016) and operated by the U.S. Department of Commerce;
    12. "Standard Contractual Clauses”, "SCCs”, or "SCC” means the standard contractual clauses for the transfer of personal data from controllers in the EU to data processors established outside the EU or EEA issued by the European Commission under decision 2010/87/EU attached hereto as Exhibit 2, as amended by Section 3;
    13. "Subprocessor" means any person (including any third partyFs but excluding independent contractors of Processor subject to Section 4) appointed by or on behalf of Processor to Process Personal Data on behalf of Client in connection with the Service Order;
    14. "Supervisory Authority” means either (as applicable): (i) an independent public authority which is established by an EU Member State pursuant to Article 51 of the GDPR; or (ii) the California Attorney General
    15. The terms, "Commission", "Controller", "Member State", "Personal Data Breach", and "Processing" have the meanings given in the GDPR.
  2. Processing of Personal Data
    1. Use of Personal Data. Processor will, and require that Subprocessors, only Process Personal Data pursuant to Client’s documented instructions as set forth in this DPA and the Service Order or where required by laws to which the relevant Contracted Processor is subject.
    2. Instruction by Client. As necessary for the provision of the Services, Client instructs Processor (and authorizes Processor to instruct each Subprocessor) to:
      1. Process Personal Data, including but not limited to by disclosing such data to Subprocessors and other third parties;
      2. transfer Personal Data to any country or territory subject to Section 3; and
      3. engage any Subprocessors subject to Section 6; and
      4. warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give such instruction.
    3. The Details of Processing, attached herewith as Exhibit 1 sets out information regarding the Processing of Personal Data as may be required by Data Protection Laws including Article 28(3) of the GDPR. Nothing in Exhibit 1 confers any right or imposes any obligation on a Party to this DPA.
  3. International Transfers. With regard to any transfer of Personal Data from Client to Processor (or from Processor to a third country) that would be prohibited by applicable EU Data Protection Laws in the absence of a lawful data transfer mechanism:
    1. Processor will during the Term comply with each of the Privacy Shield principles (including, without limitation, Accountability for Onward Transfer) with respect to the Processing of Personal Data; and
    2. this DPA and the General Terms are Client’s complete and final instructions for the Processing of Personal Data. For the purposes of SCC Clause 5(a), the following is deemed an instruction by Client to process Personal Data: (i) Processing in accordance with the General Terms and applicable Orders or SOWs; (ii) Processing initiated by Client necessary for the Processor to perform the Services; and (iii) Processing to comply with other reasonable instructions provided by Client where such instructions are consistent with the terms of the General Terms;
    3. the SCCs Clause 5(h) is satisfied by the process described in Section 6 of this DPA;
    4. Processor may remove all commercial information, or terms unrelated to the SCCs, from copies of Sub-processor agreements it must provide pursuant to SCC Clause 5(j); such copies will be provided by Processor (in a manner determined in its discretion) only upon Customer’s written request;
    5. The requirements of SCC Clause 5(f), 11, and 12(2) shall be satisfied by the processes set forth in Sections 6, 10, and 11 of this DPA;
    6. Processor will provide any certification of deletion required by SCC Clause 12(1) only upon Customer’s request in accordance with Section 10.4 of this DPA.
  4. Processor Personnel. Persons authorized by Processor to process Personal Data are bound by confidentiality or are under an appropriate statutory obligation of confidentiality.
  5. Security. Processor shall, taking into account, 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, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk and implement and any other measure described in the General Terms to protect Personal Data.
  6. Subprocessing.
    1. Customer authorizes Processor to appoint Subprocessors (and permits each Subprocessor to appoint additional Subprocessors) in accordance with this Section 6.
    2. Processor may continue to use those Subprocessors already engaged by Processor as at the date of this DPA. Customer may request notification of the appointment of new Subprocessors. Within fifteen (15) days after receiving such notice pursuant to the Notice Section of the General Terms, if Customer has a bona fide and reasonable basis to object to the new Subprocessor, Customer must notify Processor in writing and Processor will use reasonable efforts to avoid Processing of Personal Data by the objected-to new Subprocessor. If Processor cannot reasonably accommodate Customer’s objection, Processor will notify Customer. Customer may, by written notice to Processor within thirty (30) days of Processor’s notice, terminate the Service Order to the extent it relates to the Services which require the use of the objected-to new Subprocessor.
    3. Processor carries out appropriate due diligence on each Subprocessor and the arrangement between Processor and each Subprocessor is governed by a written contract which: (i) includes terms substantially equivalent to those set out in this DPA; and (ii) meet the requirements of Article 28(3) of the GDPR and Section 1798.140(v) and (w) of the CCPA. Processor is responsible for its Subprocessor's acts and omissions in relation to Processor’s obligations under this DPA.
  7. Data Subject Rights.
    1. At Customer’s request, Processor will assist Customer by implementing appropriate technical and organizational measures, insofar as this is reasonably possible, for the fulfilment of Customer’s obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the GDPR and the CCPA. To the extent legally permitted, Customer shall be responsible for any costs arising from Processor’s provision of such assistance.
    2. Processor will without undue delay notify Customer if Processor receives a request directly from a Data Subject under Data Protection Laws in respect of Personal Data.
  8. Personal Data Breach
    1. Processor Notification to Customer. Processor will notify provide prompt notice to Customer of Processor becoming aware of an actual Personal Data Breach affecting Personal Data. Likewise, Customer will notify Processor of it becoming aware of an actual Data Breach on its part that affects its Personal Data.
    2. Provision of information for downstream notification. Processor will make commercially reasonable efforts, in accordance with its security incident management policies and procedures, to identify the cause of such Personal Data Breach, and provide Customer with sufficient information to allow Customer to meet its obligations under the GDPR, CCPA or any other applicable statute to report or inform Data Subjects of the Personal Data Breach.
    3. Cooperation with Customer’s instructions. At Customer’s sole expense and to the extent Customer cannot itself access the information necessary to comply with its additional obligations under applicable Data Protection Laws, Processor shall cooperate with Customer and, if necessary, take such reasonable commercial steps as are directed by Customer to assist in Customer’s investigation, mitigation, and remediation of each such Personal Data Breach.
  9. Client’s Obligations.
    1. Customer is solely responsible for complying with incident notification laws applicable to the Customer and its Data Subjects; and
    2. Customer is solely responsible for fulling any third-party notification obligations related to any Personal Data Breach. Customer will not assess the contents of any Personal Data to identify information subject to any specific legal requirements.
  10. Data Protection Impact Assessment and Prior Consultation. At Customer’s request, Processor shall provide reasonable assistance to Customer with any data protection impact assessments and prior consultations with Supervisory Authorities or other competent data privacy authorities, as required by Article 35 or 36 of the GDPR, and in each case solely in relation to Processing of Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
  11. Return of Personal Data.
    1. Except as otherwise set forth in this Section, Process will, without unreasonable delay and as soon as commercially practicable, and in no event later than one hundred and eighty (180) days of the termination of the Service Order ("End Date”), destroy or return any Personal Data in its possession at its sole discretion and in accordance with its information security and data destruction policy then in effect.
    2. Customer may, at any time during the Term of the Service Order, request that Processor provide it with a copy of any Personal Data in Processor’s possession. Such copy shall be provided in a commonly used format, as reasonably determined by Processor. Any request furnished under this Section 11 must be received in a reasonable amount of time prior to the End Date, otherwise Processor has no obligation to respond to any such request. In the event that Processor does not receive any such request in a reasonable amount of time prior to the End Date, Processor will have no liability for any Personal Data destroyed in accordance with its information security and data destruction policy.
    3. Notwithstanding the foregoing, Processor may retain copies of Personal Data to the extent it is required by applicable law and for only as long as required by applicable law.
    4. Upon Client’s written request and provided that such request is receive within 180 days of the End Date, Processor shall certify in writing its compliance with this Section.
  12. Audit Rights.
    1. Audit. Processor shall conduct an audit of its information security measures and controls in accordance with its information security policy. Upon written request by Client, Processor will provide the results of any such audits, and Client agrees to keep any information provided pursuant to this Section, confidential and shall be subject to the confidentiality and non-disclosure provisions of the General Terms.
    2. Penetration Testing Reports. Processor shall conduct penetration testing of its systems in accordance with its information security policy. Upon written request by Client, Processor will provide the results of any such tests, and Client agrees to keep any information provided pursuant to this Section, confidential and shall be subject to the confidentiality and non-disclosure provisions of the General Terms.
    3. Audits required by EU Data Protection Law. Subject to this Section and at Client’s sole expense, Processor will make available to the Client, upon advance written request, all information necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by an auditor mandated by the Client in relation to the Processing of the Personal Data.
    4. Information and Audit Right. Except as expressly provided in this Section and only to the extent that Processor processes Personal Data of Data Subjects located in the EEA on behalf of the Client, this DPA and/or the General Terms, do not confer any other audit rights (as defined in the GDPR) to the Customer.
    5. Third-Party Auditor. Client may only request a third-party auditor for purposes of Section 12(c), and Process has approved such auditor, such approval shall not be unreasonably withheld.
    6. Notice. Any notice under this Section must be provide reasonable advance notice of any audit and shall minimize any impact to Processor’s business, must be conducted during normal business hours. Client shall be responsible for any physical damages, injury or disruption to the Processor’s business for any such audit. Client shall only conduct one (1) audit per a rolling fifty-two (52) week period, unless any such audit is carried out after a Personal Data Breach or Client is required to carry out the audit for regulatory purposes or other requirement by regulatory entity.
  13. California Consumer Privacy Act of 2018.To the extent thatProcessor is a "Service Provider” as defined in CCPA Section 1798.140(v), Client shall only disclose Personal Data to Processor for the purposes of Processor performing the Services and for only a valid business purpose. Processor is prohibited from (i) selling Personal Data, (ii) retaining, using, or disclosing Personal Data, (iii) retaining, using, or disclosing Personal Data in a method in consistent with the General Terms.
  14. General Terms. TheGoverning Law and Mandatory Arbitration Agreementsection of the General Terms shall govern this DPA and hereby submit to the choice of jurisdiction with respect to any disputes or claims arising under this DPA, including disputes regarding its existence, validity, or termination or the consequences of its nullity.
  15. Order of Precedence. In the event of amy inconsistencies between the provisions of this DPA and any other agreements between the parties, including the General Terms 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 DPA, the provisions of this DPA shall prevail.
  16. Changes in the Law. The Parties may amend this DPA, as appropriate, to conform to any new or revisedData Protection Law then either Party may provide written notice to the other Party of that change in law. The Parties will discuss and negotiate in good faith any necessary variations to this DPA to address such changes as soon as is reasonably practicable.
  17. Severability. The provisions of this DPA are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the remaining provisions and any partially enforceable provisions shall remain in full force and effect.
  18. Liability. For the avoidance of doubt, as between the parties to this DPA, each party’s liability and remedies under this DPA are subject to the liability limitations and damages exclusions set forth in the General Terms. Notwithstanding, the foregoing, Processor totality liability shall not exceed it insurance policies limits in the aggregate.

EXHIBIT 1

DETAIL OF PROCESSING PERSONAL DATA

This Exhibit 1 includes certain details of the Processing of Personal Data as required by Article 28(3) of the GDPR.

Subject matter and duration of the Processing of Personal Data:

The subject matter and duration of the Processing of Personal Data are set out in the General Terms and this DPA.

The nature and purpose of the Processing of Personal Data

Processing of Personal Data by Processor is reasonably required to facilitate or support the provision of the Services as described under the General Terms and this DPA.

Type of Personal Data and Categories of Data Subjects:

The types of Personal Data and categories of Data Subject about whom the Personal Data relates are determined and controlled by Client in its sole discretion.

Obligations and Rights of the Controller:

The obligations and rights of Client are set out in the General Terms and this DPA.

EXHIBIT 2

DETAIL OF PROCESSING PERSONAL DATA

For the purposes of Article 26(2) of Directive 95/46/EC, or a successor law or regulation including the GDPR, for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

Client (the "data exporter”) and Processor (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 Exhibit 1.

Clause 1

Definitions

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.

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 Exhibit 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:

(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 Exhibit 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 Exhibit 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).

Clause 5

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 Exhibit 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 Exhibit 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.

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 or by operation of law, in which case the data subject can enforce its rights against such entity.

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

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

Clause 7

Mediation and jurisdiction

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

(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.

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 and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is: Client

Data importer

The data importer is: Processor

Data subjects

The personal data transferred concern the following categories of data subjects:

See Exhibit 1 of the Data Processing Addendum

Categories of data

The personal data transferred concern the following categories of data:

See Exhibit 1 of the Data Processing Addendum

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

See Exhibit 1 of the Data Processing Addendum

Processing operations

The personal data transferred will be subject to the following basic processing activities:

See Exhibit 1 of the Data Processing Addendum

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(d) and 5(c):

The applicable security controls are referenced and/or set forth in the General Terms.