Data Processing Addendum

This Data Processing Addendum (”DPA”), forming part of the Compa SaaS Customer Agreement (“Principal Agreement”), is made and entered into as of ______, 20__ (the “Effective Date”), by and between Compa Technologies, Inc., a Delaware corporation, with offices 17630 Santa Cristobal St., Fountain Valley, CA 92708 (“Compa”) and [___________________] (the “Customer”), a Delaware corporation, with its principal place of business at 650 California St, 7th Floor, Suite 105, San Francisco, CA 94108. 

(each a “Party” and together, “Parties”)

WHEREAS

(A) The Customer acts as a Data Controller.

(B) Compa acts as Data Processor.

(C) The Customer wishes to contract certain Services as set forth in the Principal Agreement, which imply the processing of personal data by the Data Processor. Further details of the Processing are set out in Schedule 1 to this DPA.

(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

(E) The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:‍

1. DEFINITIONS. Capitalized terms shall have the meaning set forth in this Section 1 or as otherwise defined in other sections of this DPA. If not defined, Capitalized terms shall have the same meaning set forth in the Principal Agreement or the GDPR, as applicable:

1.1 “DPA” means this Data Processing Agreement and all Schedules.

1.2 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Principal Agreement, including Personal Data provided as Customer Data as defined in the Principal Agreement.

1.3 “Contracted Processor” means Compa and any Subprocessor.

1.4 “Data Protection Laws” means all data protection legislation and regulations applicable to the processing of the Customer Personal Data under this DPA and the Principal Agreement, including 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 (“GDPR”) and supplementing national legislation, in each case as may be amended, repealed, consolidated, or replaced from time to time.

1.5 “EEA” means the European Economic Area.

1.6 “GDPR” has the meaning set forth in the definition of Data Protection Laws.

1.7 “Data Transfer” means: 

(a) a transfer of Customer Personal Data from the Customer to Compa; or

(b) an onward transfer of Customer Personal Data from Compa to a Subprocessor. 

‍

1.8“Services” means the services the Customer is provided pursuant to the Principal Agreement.

1.9 “Subprocessor” means any person appointed by or on behalf of Data Processor to process Customer Personal Data on behalf of the Customer in connection with the DPA.

2. PROCESSING OF CUSTOMER PERSONAL DATA.

2.1 Compa, as Data Processor:

(a) shall comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and 

(b) shall not Process Customer Personal Data other than on the relevant Customer’s documented instructions, including the Principal Agreement, unless Compa reasonably believes that such documented instructions are unlawful or infringe applicable Data Protection Laws. In the case of Compa believing that the Customer’s documented instructions are unlawful or infringe applicable Data Protection Laws, Compa shall immediately inform the Customer of such belief.

2.2 Compa intends to process and store Customer Personal Data in the United States, but reserves the right to lawfully process and store data elsewhere, to the extent permitted under the Principal Agreement and this DPA.

3. DATA PROCESSOR PERSONNEL. Compa shall take commercially reasonable steps to ensure that any employee, agent, or contractor of Compa, who may have access to the Customer Personal Data, are subject to confidentiality undertakings or statutory obligations of confidentiality, ensuring in each case that access is limited to those individuals who need to know or access the relevant Customer Personal Data, as necessary for the purposes of the Principal Agreement.

4. SECURITY. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Compa shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures listed in Article 32(1) of the GDPR.

5. SUBPROCESSING.

5.1 The Customer generally agrees that Compa may engage Subprocessors (as well as advisors, contractors, and auditors) to Process Customer Personal Data. The Customer authorizes Compa to appoint (and permit each Subprocessor appointed in accordance with this Section 5 to appoint) Subprocessors in accordance with this Section 5 and any restrictions in the Principal Agreement.

5.2 Compa may continue to use those Subprocessors already engaged by Compa as at the date of this DPA (as listed at Schedule 2 to this DPA).

5.3 Notwithstanding Sections 3.2 and 3.3 of the Principal Agreement, if Compa engages a new Subprocessor, Compa shall inform the Customer of the engagement by sending an email notification to the Customer and the Customer may object to the engagement of such new Subprocessor by notifying Compa within 7 (seven) days of Compa’s email, provided that such notification must be on reasonable grounds, directly related to the new Subprocessor’s ability to comply with substantially similar obligations to those set out in this DPA. If the Customer does not object within the specified time period, the engagement of the new Subprocessor shall be deemed accepted by the Customer.

5.4 With respect to each Subprocessor (which, for the purposes of this Section 5.4 includes new Subprocessors engaged in accordance with Section 5.3), Compa shall ensure that the arrangement between Compa and the relevant Subprocessor is governed by a written contract including terms that offer at least the same level of protection for Customer Personal data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR.

6. DATA SUBJECT RIGHTS.

6.1 Taking into account the nature of the Processing, Compa shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Compa shall:

(a) promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and

(b) ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which Compa is subject, in which case Compa shall to the extent permitted by applicable laws inform Customer of that legal requirement before Compa responds to the request. 

7. PERSONAL DATA BREACH AND NOTIFICATION.

7.1 Compa shall notify Customer without undue delay upon Compa becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to notify, report, or inform Data Subjects and Supervisory Authorities of the Personal Data Breach under the Data Protection Laws.

7.2 Compa shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.

8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION. Compa shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by Articles 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the processing and information available to, the Contracted Processors.

9. DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Subject to this Section 9, Compa shall promptly and in any event within 90 days of the date of cessation of any Services involving the processing of Customer Personal Data, delete and procure the deletion of all copies of the Customer Personal Data or return all Customer Personal Data to the Customer, at the Customer’s choice.

10. AUDIT RIGHTS.

10.1 Subject to this Section 10, Compa shall make available to the Customer on request reasonable information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors. A Customer may only mandate an auditor for the purposes of this Section 10.1 if the auditor is reasonably agreed to by Compa.

10.2 Information and audit rights of the Customer only arise under Section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

10.3 Customer shall give Compa reasonable advance notice of any audit or inspection to be conducted under Section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury, or disruption to Compa’s premises, equipment, personnel, and business while its personnel are on those premises in the course of such an audit or inspection. Compa need not give access to its premises for the purposes of such an audit or inspection:

(a) to any individual unless he or she produces reasonable evidence of identity and authority;

(b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer undertaking an audit has given notice to Compa that this is the case before attendance outside those hours begins;

(c) for the purposes of more than one audit or inspection, in respect of Compa, in any calendar year, except for any additional audits or inspections which:

(i) Customer reasonably considers necessary because of genuine concerns as to Compa’s compliance with this DPA; or

(ii) Customer is required to carry out by Data Protection Law, a Supervisory Authority, or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where the Customer has identified its concerns or the relevant requirement or request in its notice to Compa of the audit or inspection; or

(d) to a third party who is performing the audit on behalf of the Customer, unless such third party auditor executes a confidentiality agreement acceptable to Compa before the audit.

10.4 Customer shall reimburse Compa for any time expended for any such on-site audit, if applicable, at Compa’s then-current professional services rate, which shall be made available to Customer upon request. Before commencement of any such on-site audit; Customer and Compa shall mutually agree on the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Compa. Customer shall promptly notify Compa with information regarding any non-compliance during the course of an audit.

10.5 The Customer must provide Compa with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. The Customer may use audit reports only for the purposes of meeting its audit requirements under the Data Protection laws and/or confirming compliance with the requirements of this DPA. The audit reports shall be confidential. 

10.6 Nothing in this Section 10 shall require Compa to breach any confidentiality owed to any of its clients, employees, or Subprocessors.

11. DATA TRANSFER. For those Data Transfers not based on an adequacy decision, as defined in Article 45 of the GDPR, or otherwise subject to appropriate safeguards or a derogation, under Articles 46 and 49 of the GDPR, respectively, the restricted transfers shall be subject to the Standard Contractual Clauses attached hereto as Schedule 3, and Compa may transfer or authorize the Data Transfer to countries outside the EU and/or the EEA consistent with those Standard Contractual Clauses.

12. MISCELLANEOUS.

Notices. All notices and communications given under this DPA shall be made in accordance with Section 13.6 of the Principal Agreement.

12.2 Liability and Indemnification. The liability of each party to this DPA, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, shall be subject to the limitations or exclusions of liability set out in Section 12 of the Principal Agreement entitled “Limitation of Liability.” Furthermore, the terms of indemnification by both Parties shall be governed by Section 9 of the Principal Agreement entitled “Indemnification” as appropriate.

12.3 Order of Precedence. In the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Principal Agreement and agreements entered into or purported to be entered into after the date of this DPA (except where explicitly agreed otherwise in writing, signed on behalf of the parties), the provisions of this DPA shall prevail. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses set forth in Schedule 3, the Standard Contractual Clauses shall prevail.

12.4 Governing Law. Notwithstanding Sections 7 and 9 of the Standard Contractual Clauses, this DPA is governed by the laws of the country or territory stipulated for this purpose in Section 13.10 of the Principal Agreement.

12.5 Term and Termination. The term of this DPA shall commence on the Effective Date of this DPA and shall be coterminous with the Principal Agreement in accordance with Section 7 of the Principal Agreement.

12.6 Amendment. This DPA is subject to the applicable terms for amendment set forth in Section 13.7 of the Principal Agreement.

IN WITNESS WHEREOF, the parties hereto hereby execute this DPA effective as of the Effective Date.

[CUSTOMER] Compa Technologies, Inc.

By: By:

Name: Name:

Title: Title:

SCHEDULE 1 - DETAILS OF THE PROCESSING

This Schedule includes certain details of the processing of Customer Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the processing of Customer Personal Data

The subject matter and duration of the processing of the Customer Personal Data are set out in the Principal Agreement and this DPA.

The nature and purpose of processing of Customer Personal Data

Compa will process Customer Personal Data as necessary to perform the Services under the Principal Agreement, as further specified in the applicable Project Addendum or Statements of Work, and as further instructed by the Customer in the use of the Services.

The types of Customer Personal Data to be processed 

Customer may submit Customer Personal Data to Compa for the provision of the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• First and last name
• Title
• Position
• Employer 
• Client ID
• Physical addresses
• Geolocation
• Contact information (company, email, phone, physical business address)

The categories of Data Subject to whom the Customer Personal Data relates

Customer may submit Personal Data to Compa for the provision of the Services, the extent of which is determined and controlled by 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 Services
• Employees, agents, advisors, freelancers of Customer (who are natural persons)
• Candidates and prospective candidates of Customer

The obligations and rights of the Customer

The obligations and rights of the Customer are set out in the Principal Agreement and this DPA.

SCHEDULE 2 – APPROVED SUBPROCESSORS

Entity Name

Subprocessing Activity

Entity Country

Amazon Web Services

Cloud service provider

United States

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Google Workspace

Data room

United States

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Mixpanel

Cloud-based Analytics

United States

‍

Secureframe

Security scanning

United States

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WorkOS

SSO infrastructure

United States

‍

Sentry

Cloud-based logging

United States

SCHEDULE 3 – 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

Name of the data exporting organization: [Customer name]

Address: 650 California St, 7th Floor, Suite 105, San Francisco, CA 94108

Tel.  ...............................;.  fax                                ;.  e-mail:

                     Other information needed to identify the organization

(the  data exporter)

And

Name of the data importing organization: Compa Technologies, Inc.

Address: 17630 Santa Cristobal St, Fountain Valley, CA 92708

Tel.  ................................;.  fax   ..............................;.  e-mail: 

      Other information needed to identify the organization:

(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:

(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 sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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

(c) 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 sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
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 organizational 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, unauthorized 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 sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

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 organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(e) 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;

(f) any accidental or unauthorized access; and

(g) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(h) 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;

(i) 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;

(j) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 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;

(k) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(l) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(m) to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract 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 sub-processor 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 sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

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 sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9

Governing law

The Clauses shall be  governed  by  the  law  of  the  Member  State  in  which  the  data  exporter  is  established,  namely ................................................................................................................................................................................................................

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

Sub-processing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6  against the  data  exporter or  the  data  importer  because they  have factually disappeared or have ceased to exist in law or have become insolvent and no  successor entity  has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely ...........................................
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(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 sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

On behalf of the data exporter:

Name (written out in full): ...........................................................................................................................................................................

Position:       .............................................................................................................................................................................................................

Address:         .................................................................................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

Signature ............................................................................................

(stamp of organization)

On behalf of the data importer:

Name (written out in full): ...........................................................................................................................................................................

Position:       .............................................................................................................................................................................................................

Address:         .................................................................................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

Signature ............................................................................................

(stamp of organization)

Appendix 1

(a) 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

(b) Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

(c) Data importer

The data importer is (please specify briefly activities relevant to the transfer):

(d) Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

(e) Categories of data

The personal data transferred concern the following categories of data (please specify):

(f) Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

(g) Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

DATA EXPORTER

Name: ....................................................................................................................

Authorized Signature ...........................................................................................

DATA IMPORTER

Name: ....................................................................................................................

Authorized Signature ...........................................................................................

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