Data Processing Addendum

Data Processing Addendum

Last Updated: October 15, 2020

This Data Processing Addendum (the “DPA”) is entered into between BitTitan, Inc. (“BitTitan”) and a customer who has previously agreed to a BitTitan User Agreement (defined below) (“Customer”). By continuing to use the BitTitan Services, you agree to the terms and conditions of this DPA.

If you require additional terms in this DPA to comply with your local laws and regulations (such as Standard Contractual Clauses), please contact us at GDPR@BitTitan.com.

 

  1.       DEFINITIONS AND BACKGROUND

1.1.   Definitions. Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Appendix 1.

1.2.   Background.  Customer and BitTitan acknowledge that Customer may either be accessing the BitTitan Services in connection with services it provides to a Client or as a data controller for its own purposes.  The purpose for which Customer accesses the BitTitan Services is further specified in the Service Specific Terms.  Where Customer is accessing the BitTitan Services on behalf of a Client, the parties acknowledge that BitTitan will be a sub-processor to Customer. In all other cases, BitTitan will be considered a data processor as that term is defined by relevant Data Protection Law.  

 

  1.       DATA PROCESSING AND PROTECTION

2.1.   Scope and Limitations on Use. BitTitan will Process Personal Data only:

(a)    in a manner consistent with documented instructions from Customer, which will include Processing (i) as authorized or permitted under any BitTitan User Agreement, (ii) as specified in Appendix 2 to this DPA, and (iii) consistent with other reasonable instructions of Customer; and

(b)    as required by Data Protection Law, provided that BitTitan will inform Customer (unless prohibited by such Data Protection Law) of the applicable legal requirement before Processing pursuant to such Data Protection Law. 

2.2.   Confidentiality. BitTitan will ensure that persons authorized by BitTitan to Process any Personal Data are subject to appropriate confidentiality obligations.

2.3.   Customer Obligations.  Customer will not instruct BitTitan to perform any Processing of Personal Data that violates any Data Protection Law. 

2.4.   Security. BitTitan will protect Personal Data in accordance with requirements under Data Protection Law.  BitTitan will use appropriate technical and organizational measures protect Personal Data that will meet or exceed the requirements specified in Appendix 3 to this DPA. Customer is otherwise obligated to maintain the security of its accounts, credentials, and network connections as set forth in the relevant BitTitan User Agreement.   Customer is solely responsible for assessing whether the security measures implemented by BitTitan for the provision of the Services meet its own standards and requirements.

2.5.   Return or Disposal.  At the choice of Customer, BitTitan will delete or return (or will enable Customer via the BitTitan Services to delete or retrieve) all Personal Data after the end of the provision of BitTitan Services (unless Data Protection Law requires the storage of such Personal Data by BitTitan).

 

  1.       DATA PROCESSING ASSISTANCE

3.1.   Data Subject’s Rights Assistance. Taking into account the nature of BitTitan’s Processing of Personal Data, BitTitan will assist Customer in responding to data subject access requests as reasonably necessary through appropriate technical and organizational measures, insofar as this is possible, to assist Customer in the fulfillment of its (or its Client’s, as applicable) obligations to respond to requests for exercising a Data Subject's rights under Chapter III of the GDPR.  

3.2.   Further Assistance.  Taking into account the nature of Processing and the information available to BitTitan, BitTitan will reasonably assist in Customer’s and BitTitan’s efforts to comply with Articles 32 to 36 of the GDPR by facilitating Customer’s exercise of audits pursuant to Section 4 of this DPA. At Customer’s expense, BitTitan will assist Customer or Customer’s Client in performing data protection impact assessments as may be required by relevant Data Protection Law. 

3.3.   Personal Data Breach Notice and Assistance.  BitTitan will notify Customer without undue delay after becoming aware of a Personal Data Breach. BitTitan will provide reasonable assistance to Customer as may be necessary for Customer (or its Clients, as applicable) to satisfy any notification obligations imposed under Data Protection Law in connection with any Personal Data Breach, including by providing notice to Customer regarding: (a) the nature of the Personal Data Breach, including where possible the categories and approximate numbers of affected Data Subjects and Personal Data records concerned; (b) the likely consequences of the Personal Data Breach; and (c) any measures taken or proposed to be taken to address the Personal Data Breach. 

 

  1.       AUDITS

At Customer’s expense, BitTitan will allow for and cooperate with audits mandated by Customer and performed by Customer or Customer’s agent for the purpose of verifying BitTitan’s compliance with this DPA and the relevant Data Protection Law. Any such audit will be limited to what is reasonably necessary to verify BitTitan’s compliance with this DPA or relevant Data Protection Law, must occur during BitTitan’s normal business hours, and must otherwise be consistent with the requirements of this Section 4.  Customer will only have the right to audit BitTitan once per 12-month period.  In connection with any such audit, the auditor will: (a) observe reasonable on-site access and other restrictions reasonably imposed by BitTitan; (b) comply with reasonable and applicable on-site policies and procedures provided by BitTitan; and (c) not unreasonably interfere with BitTitan’s business activities. Customer will provide written communication of any audit findings to BitTitan, and the results of the audit will be the confidential information of BitTitan.  Customer will provide no less than forty-five (45) days’ advance notice of its request for any such audit, and will cooperate in good faith with BitTitan to schedule any such audit on a mutually agreed upon date and time (such agreement not to be unreasonably withheld by either party).  Customer’s auditor will not be entitled to access information subject to third-party confidentiality obligations. 

 

  1.       SUBPROCESSORS

Customer authorizes BitTitan to use the subcontractors specified in Appendix 2 (if applicable) to Process Personal Data in connection with the provision of BitTitan Services to Customer (“Subprocessor”).  BitTitan will provide Customer with notice of any intended changes concerning the addition or replacement of its Subprocessors and provide Customer with the opportunity to object to such changes.  If Customer objects to such changes, BitTitan may terminate the Agreement immediately upon notice to Customer.  BitTitan will impose data protection obligations upon any Subprocessor that are no less protective than those included in this DPA and will be liable to Customer for any breach of such obligations by such Subprocessor. 

 

  1.       DATA TRANSFERS

Unless a different data center is selected by Customer within the Service, BitTitan will only Process Personal Data within the United States. BitTitan will take reasonable and appropriate steps to stop and remediate, and will cooperate with Customer’s reasonable requests regarding, any unauthorized Processing of Personal Data by BitTitan. To the extent required by Applicable Law,  the parties agree that  any third country transfer shall be governed by the Standard Contractual Clauses attached as Exhibit A to this DPA.

 

  1.       MISCELLANEOUS

The terms of this DPA will control to the extent there is any conflict between terms of this DPA and the terms of any other agreement with BitTitan. Except as specifically amended and modified by this DPA, the terms and provisions of the any other agreement with BitTitan remain unchanged and in full force and effect.  Without limiting the foregoing, the governing law clause, limitation of liability clause, and forum selection clause of any other agreement with BitTitan will apply to any disputes arising out this DPA. 



Appendix 1: Definitions

 

For purposes of this DPA, the following terms will have the meaning ascribed below:

Client” means a third-party client of Customer, on whose behalf Customer accesses and uses the BitTitan Services.

Data Protection Law” means any and all privacy, security and data protection laws and regulations that apply to the Processing of Personal Data by BitTitan.

Data Subject” means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

 “GDPR” means 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).

Personal Data” means the personal data that relates to a Data Subject that BitTitan Processes on behalf of Customer, which is described in Appendix 2.

Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data. 

Process” or “Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

BitTitan Services” means the services provided by BitTitan.

BitTitan User Agreement” means one or more of BitTitan’s standard online User Agreements, including but not limited to, MigrationWiz, MSPComplete Access, Device Management Agent, or Voleer as applicable.

Terms of Use” means the BitTitan Terms of Use located here.

 

Appendix 2 - Details of Data Processing

 

Subject-Matter

The subject matter of the data processing under this DPA is Customer Data, which means all data provided by Customer to BitTitan for the purposes set forth in a BitTitan User Agreement.

Purpose and Nature

The purpose and nature of the data processing under this DPA is the provision of the Services initiated by Customer as described in the relevant BitTitan User Agreement.

Duration

As between BitTitan and Customer, the duration of the data processing under this DPA is determined by solely by Customer, provided that BitTitan may need to process certain types of Customer Data beyond the period of time requested by Customer in order to comply with applicable law, including relevant Data Protection Law.

Categories of Data Subjects

The data subjects may include Customer’s customers, employees, suppliers and/or end-users.

Subprocessors

The following entities may act as subprocessors under this DPA:

    •   Microsoft Azure
    •   Google
    •   Amazon Web Services

 

Appendix 3 - Data Security Measures

 

  1.       Program. BitTitan will implement and maintain a comprehensive written information security program (“Information Security Program”), which contains appropriate administrative, technical and organizational safeguards that comply with this Appendix 3 and that are reasonably designed to: (a) ensure the security, integrity, availability, resilience and confidentiality of Personal Data; and (b) prevent any Personal Data Breach; and (c) meet or exceed prevailing industry standards.  

 

  1.       Access Controls. BitTitan will implement measures to: (a) abide by the “principle of least privilege,” pursuant to which access to Personal Data by BitTitan personnel will be strictly on a need-to-know basis; and (b) promptly terminate its personnel’s access to Personal Data when such access is no longer required for performance under the Agreement.

 

  1.       Account Management. BitTitan will use reasonable measures to manage the creation, use, and deletion of all account credentials used to access the BitTitan’s network, including by requiring unique credentials for each user and by implementing minimum password length and format requirements designed to encourage strong passwords.

 

  1.       Vulnerability Management. BitTitan will use reasonable measures to: (a) periodically use automated vulnerability scanning tools to scan the BitTitan’s production system for vulnerabilities; and (b) implement patch management and software update tools as made available by the providers of those tools.

 

  1.       Security Segmentation. BitTitan will use reasonable measures designed to monitor, detect and restrict the flow of information on a multilayered basis using tools such as firewalls, proxies, and network-based intrusion detection systems.

 

  1.       Data Loss Prevention. BitTitan will use reasonable data loss prevention measures designed to identify, monitor and protect Personal Data in use, in transit and at rest.  Such data loss prevention processes and tools will include, where appropriate: (a) automated tools designed to identify attempts of data exfiltration; and (b) use of certificate-based security.

 

  1.       Encryption. BitTitan will encrypt, using industry standard encryption tools, all Personal Data that BitTitan: (i) transmits or sends wirelessly or across public networks; (ii) stores on laptops or storage media, and (iii) stores on portable devices or within the BitTitan System.

 

  1.       Pseudonymization. BitTitan will, where possible and consistent with the BitTitan Services, use industry standard and commercially reasonable pseudonymization techniques designed to protect Personal Data. 

 

  1.       Software Development. BitTitan represents and warrants that any software used in connection with the Processing of Personal Data is or has been developed using software development practices that include: (a) segregating development and production environments; (b) filtering out potentially malicious character sequences in user inputs; (c) implementing memory management practices; (d) using web application firewalls to address common web application attacks such as cross-site scripting, SQL injection and command injection; (e) testing object code and source code for coding errors and vulnerabilities; (f) testing of web applications for vulnerabilities using web application scanners; and (g) testing software for performance under denial of service and other resource exhaustion attacks.

 

  1.   Physical Safeguards. BitTitan will maintain physical access controls designed to secure the BitTitan owned physical premises where the relevant BitTitan computing environment used to Process any Personal Data is located, including an access control system that enables BitTitan to control physical access to each BitTitan facility.

 

  1.   Administrative Safeguards. Prior to providing access to Personal Data to any of its employees, BitTitan will take measures designed to: (a) verify the reliability of such personnel; and (b) provide appropriate security training to such personnel.

 

Exhibit A: Standard Contractual Clauses (processors)

 

The customer as provided for under the DPA (“Customer” or “the data exporter”) and BitTitan, Inc. (“BitTitan” or “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. Unless otherwise defined in the Clauses, capitalized terms will have the meaning set out in the user agreement made available at www.bittitan.com/legal (the “User Agreement”). In the event of any conflict between any agreement entered into by and between the data exporter and the data importer for access and and/or use of the services of the data importer, the terms of the Clauses shall prevail; provided that, the governing law provision in any such agreement will continue to apply to the terms of the other agreements.

 

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 Appendix 1 which forms an integral part of the Clauses.

 

Clause 3

Third-party beneficiary clause

          

  1.   The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

 

  1.   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.

 

  1.   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.

 

  1.   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 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).

 

 

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 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.

 

* Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti- money-laundering reporting requirements.

 

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.

 

  1.    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.

 

  1.   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.

  1.   The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

 

Clause 8

Cooperation with supervisory authorities

 

  1.   The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

 

  1.   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.

 

  1.   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.

 

      1.    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.

 

      1.    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.

 

      1.    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.

 

  1.   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

This Appendix forms part of the Clauses and must be completed 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

(i)   Data exporter

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

A users or reseller of the data exporter who is using or reselling the Service Offerings, as defined in the User Agreement.

(j)   Data importer

The data importer is (please specify briefly activities relevant to the transfer): A US company providing the Service Offerings.

(k)   Data subjects

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

Data subjects include the data exporter’s customer’s representatives and end-users including employees, contractors, collaborators, and customers of the data exporter. Data subjects may also include individuals attempting to communicate or transfer personal information to the data exporter’s customer’s representatives and end-users.

(l)   Categories of data

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

The personal data transferred includes e-mail, documents and other data in an electronic form in the context of the Service Offerings.

(m)   Special categories of data (if appropriate)

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

None, unless specifically contained within the emails, documents and other data voluntarily transferred by the data exporter.

(n)   Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify): The personal data will undergo processing related to the Service Offerings.

Appendix 2

This Appendix forms part of the Clauses and must be completed by the parties

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

The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect data exporter personal data against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows: The technical and organizational measures, internal controls, and information security routines set forth in the User Agreement are hereby incorporated into this Appendix 2 by this reference and are binding on the data importer as if they were set forth in this Appendix 2 in their entirety.