Data Processing Addendum

DATA PROCESSING ADDENDUM

     1. Preamble. This Data Processing Addendum (“DPA”), forms part of the Software as a Service (SaaS) Terms of Service (the “TOS”) between LinkSquares, Inc. (“Company”) and the entity that has engaged Company to provide the Service (as defined below) (“Client”) and shall be effective as of the date of the applicable Order Form (as defined in the TOS). The applicable Order Form(s) together with the TOS are referred to collectively herein as the “Client Agreement.” Terms used and not otherwise defined herein shall have the meanings ascribed to them in the Client Agreement. In this DPA, “Service” means the services provided to Client by the Company in accordance with the terms of the Client Agreement. 

     2. Subject Matter, Nature, Purpose and Duration. Sections 2 through 6 of this DPA apply to the processing of personal data relating to data subjects located in the European Economic Area or the United Kingdom, or that is otherwise regulated by the GDPR, by the Company solely on behalf of Client for the purpose of providing the Service (“EU Personal Data”). As between the parties, (i) Client is a controller and the Company is a processor on behalf of Client with regard to EU Personal Data or (ii) Client is a processor and the Company is a subprocessor on behalf of Client with regard to EU Personal Data. The subject matter and purposes of EU Personal Data processing, type of EU Personal Data, categories of data subjects, nature of the EU Personal Data processing, and Client’s data processing instructions for the Company, are set forth on Exhibit A to this DPA and as otherwise as provided in reasonable written instructions by Client to the Company from time to time. This DPA shall remain in effect, and the duration of the processing under this DPA shall continue, as long as the Company carries out EU Personal Data processing operations on behalf of Client or until the termination of the Client Agreement (and all EU Personal Data has been returned or deleted in accordance with Section 3(g)). The following terms have the meanings given in the General Data Protection Regulation (EU) 2016/679 (“GDPR”): “controller”, “personal data”, “processor”, “data subject” and “processing”.

     3. Processing Covenants.  In processing EU Personal Data hereunder, the Company shall:

         a.  process EU Personal Data only on documented instructions from Client, unless otherwise required to do so by applicable law, in which case the Company will inform Client of that legal requirement before processing, unless applicable law prohibits the Company from informing Client. For the avoidance of doubt, this DPA shall constitute Client’s documented instructions to the Company to process EU Personal Data in connection with the Company’s provision of the Service to Client;

         b. use commercially reasonable efforts intended to ensure that persons authorized to process EU Personal Data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality or are subject to ethical rules of responsibility that include confidentiality;

         c. 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, implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR;

         d.  taking into account the nature of the processing, use commercially reasonable efforts to assist Client, at Client’s expense, by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Client’s obligation to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR and any applicable national implementing legislation, regulations and secondary legislation relating to the processing of EU Personal Data (the “Data Protection Laws”);

         e.  taking into account the nature of processing and the information available to the Company, use commercially reasonable efforts to assist Client, at Client’s expense, in ensuring compliance with Client’s obligations described in Articles 32 through 36 of the GDPR;

         f.  notify Client promptly if the Company becomes actually aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, EU Personal Data (an “Incident”), provided that the provision of such notice by the Company shall not be construed as an acknowledegment of fault or liability with respect to any such Incident;

         g.  at the choice of Client, delete or return all EU Personal Data to Client within ninety (90) days after the end of the provision of the Service to Client and delete existing copies unless applicable law requires retention of EU Personal Data; and

         h.  make available upon Client’s reasonable request information reasonably necessary to demonstrate material compliance with the obligations laid down in this DPA and allow for and contribute to audits (each, an “Audit”), at Client’s expense, including inspections of processing facilities under the Company’s control, conducted by Client or another auditor chosen by Client (an “Auditor”), during normal business hours, no more frequently than once during any twelve (12) month period, and upon reasonable prior notice, provided that no Auditor shall be a competitor of the Company, and provided further that in no event shall Client have access to the information of any other client of the Company and the disclosures made pursuant to this Section 3(h) (“Audit Information”) shall be held in confidence as the Company’s Confidential Information and subject to any confidentiality obligations in the Client Agreement, and provided further that no Audit shall be undertaken unless or until Client has requested, and the Company has provided, documentation pursuant to this Section 3(h) and Client reasonably determines that an Audit remains necessary to demonstrate material compliance with the obligations laid down in this DPA. Without limiting the generality of any provision in the Client Agreement, Client shall employ the same degree of care to safeguard Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the circumstances, and Client shall be liable for any improper disclosure or use of Audit Information by Client or its agents.

     4.  Subprocessors. Client hereby grants the Company general authorization to engage another processor to process EU Personal Data on behalf of the Company (each a “subprocessor”) to assist the Company in processing EU Personal Data as set out in this DPA. The Company shall enter into contractual arrangements with such subprocessors requiring the same level of data protection compliance and information security as that provided for herein. Client hereby consents to the processing of EU Personal Data by, and the disclosure and transfer of EU Personal Data to, the subprocessors listed on Exhibit B to this DPA. The Company shall inform Client of any intended changes concerning the addition or replacement of subprocessors at least ten (10) calendar days before the new subprocessor processes EU Personal Data. Client may object to such changes in writing within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection (an “Objection”). In the event of an Objection, the parties will discuss such concerns in good faith with the intention of achieving a resolution. If the parties are not able to achieve a resolution as described in the previous sentence, Client, as its sole and exclusive remedy, may terminate the Client Agreement for convenience, on the condition that Client provides written notice to the Company within five (5) calendar days of being informed of the engagement of the subprocessor. Client shall not be entitled to any refund of fees paid prior to the date of any termination pursuant to this Section 4.

     5.  Client Obligations. Client represents, warrants, and covenants that (i) it shall comply with its obligations as a controller under the GDPR in respect of its processing of EU Personal Data and any processing instructions it issues to the Company as referred to in Section 3(a); (ii) it has provided notice and obtained all consents and rights required by the Data Protection Laws to transfer the EU Personal Data outside the European Economic Area or United Kingdom and for the Company to process EU Personal Data pursuant to the Client Agreement and this DPA; and (iii) the processing of EU Personal Data by the Company upon the documented instructions of Client under Section 3(a) shall have a lawful basis of processing pursuant to Articles 6 and 9 of the GDPR. If Client is a processor, Client represents and warrants to the Company that Client’s instructions and actions with respect to EU Personal Data, including its appointment of the Company as another processor, have been duly authorized by the relevant controller. Client shall indemnify, defend and hold the Company harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 5. Notwithstanding anything to the contrary in the Client Agreement, Client’s indemnification obligations under this Section 5 shall not be subject to any limitations of liability set forth in the Client Agreement.

     6.  Data Transfer. Client hereby consents to the transfer of EU Personal Data to, and the processing of EU Personal Data in, the United States of America and/or in any other jurisdiction in which Company or its subprocessors have operations. The parties hereby enter into the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2010/87/EU, attached hereto as Exhibit C (the “SCCs”) and made a part of this DPA in their entirety.

     7. Other Personal Data. Notwithstanding anything to the contrary in the Client Agreement (including this DPA), Client acknowledges that the Company shall have a right to use and disclose data relating to the operation, support and/or use of the Service for its legitimate business purposes, such as product development and sales and marketing. To the extent any such data is considered personal data (as defined in, and regulated by the GDPR (as defined in Section 2)), the Company is the controller (as defined in the GDPR) of such data and accordingly shall process (as defined in the GDPR) such data in accordance with the Company’s privacy policy and the GDPR. From and after the CCPA Effective Date (as defined in Section 8), to the extent any such data is considered personal information (as defined in, and regulated by, the CCPA (as defined in Section 8)), the Company is the business (as defined in the CCPA) with respect to such data and accordingly shall process (as defined in the CCPA) such data in accordance with the Company’s privacy policy and the CCPA.

     8.  CCPA Provisions. This Section 8 shall apply from and after the CCPA Effective Date (as defined below) and shall not apply before such CCPA Effective Date. As between the parties, Company is a service provider to Client with respect to Consumer Information.

         a. In this Section 8:

                  i. “CCPA” means the California Consumer Privacy Act of 2018.

                  ii. “CCPA Effective Date” means January 1, 2020 or the date the CCPA becomes enforceable, whichever is later.

                  iii. “Consumer Information” means any personal information that is processed by Company solely on behalf of the Client.

                  iv. “Medical Information” means any Consumer Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.

                  v. “Health Insurance Information” means a California resident’s insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the California resident, or any information in a California resident’s application and claims history, including any appeals records.

                   vi. “Sensitive Consumer Information” means any Consumer Information that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific California resident; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; (V) Health Insurance Information; (VI) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific California resident (except that unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes) or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive Consumer Information does not include publicly available Consumer Information that is lawfully made available to the general public from federal, state, or local government records.

                   vii. The following terms have the meanings given in the CCPA: “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”.

         b. From and after the CCPA Effective Date, except as otherwise required by applicable law, Company shall:

                   i. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive Consumer Information intended to protect such Sensitive Consumer Information from unauthorized access, destruction, use, modification, or disclosure;

                   ii. not retain, use or disclose Consumer Information for any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of providing the Company Service (including retaining, using or disclosing the Consumer Information for a commercial purpose other than providing the Company Service) or as otherwise permitted by the CCPA as applicable to service providers;

                  iii. not collect or use Consumer Information except as reasonably necessary to provide the Company Service;

                   iv. not sell Consumer Information;

                   v. to the extent necessary, use commercially reasonable efforts to assist Client, at Client’s expense, in Client’s fulfilment of Client’s obligation to respond to California residents’ requests to exercise rights with respect to their Consumer Information under the CCPA; and

                   vi. use commercially reasonable efforts to assist Client, at Client’s expense, to the extent necessary to support Client’s compliance with Client’s obligations under the CCPA.

         c. Company understands the restrictions provided in Section 8(b)(ii) and (iv) and will comply with them.

         d. Client agrees that (i) it shall comply with its obligations under the CCPA in respect of its processing of Consumer Information and any processing instructions it issues to Company; and (ii) it has provided notice (including pursuant to Section 1798.135 of the CCPA) and obtained all consents and rights required by the CCPA for Company to process Consumer Information pursuant to the Client Agreement and this DPA. Client shall indemnify, defend and hold Company harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Client’s violation of this Section 8(d).

         e. Nothing in this DPA shall prevent Company from engaging its own service providers in the processing of Consumer Information, provided that Company shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 8 with respect to Consumer Information.

     9. PIPEDA Provisions. This Section 9 applies to the extent the Company has access to, collects, uses or discloses any Canadian Personal Information (as defined in Exhibit D to this DPA) while performing the Services under the Client Agreement that is subject to Canadian Privacy Laws (as defined in Exhibit D to this DPA), including The Personal Information Protection and Electronic Documents Act (“PIPEDA”). Attached to this DPA, as Exhibit D, is the PIPEDA Data Protection Schedule, which forms part of the DPA.

   10. Integration. This DPA, including the SCCs, and the Client Agreement constitute the parties’ entire agreement and understanding with respect to the subject matter hereof. Except as set forth in Sections 5 and 8(d), the obligations contained in this DPA are (i) subject to any limitations of liability set forth in the Client Agreement and (ii) in addition to the other obligations contained in the Client Agreement. In the event of a conflict between this DPA and any other terms in the Client Agreement, the terms of this DPA will govern. For the avoidance of doubt, to the extent that the Client Agreement excludes any types of information from confidentiality obligations, those exclusions shall not apply to information relating to any identified or identifiable natural person.

Exhibit A
Subject Matter, Nature, Purpose and Duration of the Processing

1. Type of EU Personal Data:

Representatives of Client: First name, last name, title, personal address, workplace address, billing address, email address, telephone number(s), payment card information, , password, transaction data, internet protocol address, analytics/audit logging features (logins, file views, modifying data); browser type and version, time zone setting and location, username, browser plug-in types and versions, operating system and platform and other technology on the devices used to access LinkSquares’ website, website usage data, website user marketing and communication preferences; and

Individuals whose EU Personal Data is included in files uploaded to the Service by Client: Any EU Personal Data included in files uploaded to the Service by Client and/or its representatives, the extent of which is determined and controlled by Client in its sole discretion, including but not limited to: First name, last name, contact information, email address, date of hire, date of birth, government-issued identification number, bank account information and other financial information, compensation related information, human resources information, performance information, data concerning health, data concerning sexual orientation, ethnicity.

2. Categories of Data Subject:

Representatives of Client; Individuals whose EU Personal Data is included in files uploaded to Company’s platform by Client.

3. Subject Matter and Purposes EU Personal Data Processing:

Company’s provision of the Service to Client in accordance with the Client Agreement.

4. Nature of the Processing:

The EU Personal Data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing the Service by the Company to Client in accordance with the terms of the Client Agreement.



							

Exhibit B
Subprocessors

Google

Amplitude

Pendo

Fullstory

Cenza Technologies

Amazon Web Services

Salesforce

Leadlander

Slack

Drift

Exhibit C

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

 

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

Client (the ‘data exporter’)

And

Company (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 organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

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

Clause 3
Third-party beneficiary clause

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

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

3. The data subject can enforce against the 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 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 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 importer2

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:

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;

any accidental or unauthorised access; and

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 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;

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

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

(j) 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.

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 Clauses3. Where the sub-processor 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 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.

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.

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.

Appendix 1
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties. By signing the signature page to the applicable Order Form, the parties will be deemed to have signed this Appendix 1.

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 (please specify briefly your activities relevant to the transfer):
Service recipient of data importer

Data importer

The data importer is (please specify briefly activities relevant to the transfer):
Service provider for data exporter

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):
Section 2 of Exhibit A to this DPA is incorporated herein by reference.

Categories of data

The personal data transferred concern the following categories of data (please specify):
Section 1 of Exhibit A to this DPA is incorporated herein by reference.
Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):
Any special categories of personal data included in files uploaded to the Service by data exporter and/or its representatives, the extent of which is determined and controlled by the data exporter in its sole discretion, including, but not limited to: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):
Section 4 of Exhibit A to this DPA is incorporated herein by reference.

 

Appendix 2
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties. By signing the signature page to the applicable Order Form, the parties will be deemed to have signed this Appendix 2.

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):

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, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.

 

Exhibit D

PIPEDA Data Protection Schedule

1. Context. The terms and conditions included in this Exhibit D shall apply to the extent that the Company has access to, collects, uses or discloses any Canadian Personal Information (as defined below) while performing the Services under the Client Agreement. The obligations under this Exhibit D shall survive the termination or expiration of the DPA or any renewal or extension thereof.

2. Definitions. For the purposes of this exhibit:

(a) “Canadian Personal Information” means information about an identifiable individual or personal health information that is regulated by any Privacy Laws that is transferred to, collected by, compiled, stored, or otherwise under the control or custody of the Company pursuant to the Client Agreement and solely to perform the Services, and that is: (i) used to provide the Services; (ii) is about the Client’s clients, employees, past employees, or other individuals to whom the Client is under an obligation to comply with Privacy Laws; or, (iii) is otherwise held by the Company on behalf of the Client; and

(b) “Privacy Laws” means any applicable Canadian privacy laws including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada), or any substantially similar provincial laws, and any regulations, policies, requirements guidelines, or standards established, formulated or otherwise made pursuant thereto or in accordance therewith.

3. Control of and Rights in Canadian Personal Information. As between the Company and the Client, control of Canadian Personal Information shall always remain with the Client. The Company acknowledges and agrees that nothing gives the Company any right, title or interest in any Canadian Personal Information.

4. Access to and Use of Canadian Personal Information. The Company may access and use Canadian Personal Information on a need-to-know basis as expressly authorized by the Client for the sole and express purpose of fulfilling its obligations under the Client Agreement. Any such access or use of Canadian Personal Information by the Company shall be to the minimum extent necessary for the Company to fulfill its obligations under the Client Agreement.

5. Return or Destruction of Canadian Personal Information. At the choice of Client, Company will delete or return all Canadian Personal Information to Client within ninety (90) days after the end of the provision of the Service to Client and delete existing copies unless applicable law requires retention of Canadian Personal Information.

6. Location of the Canadian Personal Information. Unless the Client has given its prior written consent, the Company may possess and maintain the Canadian Personal Information only in Canada, the United States, and India.

7. Security of Canadian Personal Information. Without limiting any other provision in this Schedule or the Client Agreement with regard to the security of information, the Company shall have in place reasonable policies, procedures and safeguards to protect the confidentiality and security of the Canadian Personal Information. The Company shall ensure the physical security of the Canadian Personal Information by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure, disposal, loss or modification.
The Company will protect the security and confidentiality of the Canadian Personal Information to at least the same standard as the Company protects its own confidential information of a similar nature and, in any event, to at least the standard required by applicable Privacy Laws.

8. Audit. The Company will provide (a) the Client’s internal auditor; and/or (b) a nationally recognized audit firm appointed by the Company, with reasonable access to relevant books, records and facilities under the control of Company in order to conduct appropriate audits, examinations and inspections to ensure the Company’s compliance with this Exhibit. Such audits shall be conducted on reasonable notice and shall not unreasonably interfere with the Company’s operations. Notwithstanding the foregoing, in no event shall Client have access to the information of any other client of the Company and the disclosures made pursuant to this Section 8 (“Canadian Audit Information”) shall be held in confidence as the Company’s Confidential Information and subject to any confidentiality obligations in the Client Agreement. Without limiting the generality of any provision in the Client Agreement, Client shall employ the same degree of care to safeguard Canadian Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the circumstances, and Client shall be liable for any improper disclosure or use of Canadian Audit Information by Client or its agents.

9. Breach Notification. The Company shall promptly notify the Client in writing in the event the Company becomes aware of, or reasonably suspects, any unauthorized or improper access to, use of or disclosure of any Canadian Personal Information. The Company agrees to take all reasonable steps to cooperate with the Client in relation to, and (to the extent such authorized access to, use or disclosure of Canadian Personal Information is caused by the negligent acts or omissions of the Company) to mitigate any harmful effect resulting from, any such unauthorized access to, use or disclosure of Canadian Personal Information.

1Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

2 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.

3This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.