ADV veraltet

DATA PROCESSING ADDENDUM

With EU Standard Contractual Clauses between .................................................................................................................................................... - (the “Service Company”) – and .................................................................................................................................................... - (the “Customer”) - This Data Processing Addendum (the “Addendum”) is entered into by and between the Service Company and the Customer and consists of the main body of the Addendum, Attachment A: Standard Contractual Clauses, Attachment B: General technical and organisational measures, Attachment C: Scope of personal data processing and supplements the terms of service agreed to between Customer and Service Company governing Customer’s use of the services on ………………..(date), named ………………………………, hereinafter the “Service Agreement” (Attachment D) and shall be effective from the effective date of the Service Agreement. Processing activities carried out under the Addendum The processing activities, the categories of personal data and the data subjects concerned are described in Attachment C: Scope of personal data processing. Term of the Addendum The term of this Addendum is equivalent to the term of the Service Agreement. Technical and organisational measures The Service Company will implement and comply with, or be responsible for ensuring implementation and compliance of its sub-processors with, the technical and organisational measures as described in Attachment B: General technical and organisational measures. These technical and organisational measures form the basis of the processing of personal data. In case the initial review by the Customer, future developments and/or an audit by the Customer raises the need for changes, the parties will cooperate to amend this Addendum accordingly and the Service Company shall implement appropriate measures. The technical and organisational measures are subject to technical progress and development, and the Service Company may implement adequate alternative measures. These must not however fall short of the level of security provided by the specified measures. The Service Company will document material changes and will take initiative for the parties to amend this Addendum insofar. Correction, deletion and blockings of data The Service Company may only correct, delete or block the data processed, when instructed to do so by the Customer. If a data subject should apply directly to the Service Company to request the correction or deletion of its personal data, the Service Company must forward this request to the Customer without delay and will cooperate with Customer to resolve data subject requests. Controls and other responsibilities of the Service Company The Service Company has also the following responsibilities: Comply in all material aspects with applicable data protection legislation. Written appointment – where stipulated by law – of a reliable and competent data protection officer. The officer’s contact details must be supplied to the Customer to enable direct contact to be made. The maintenance of confidentiality in accordance with applicable data protection laws. All persons of the Service Company who have access to personal data belonging to the Customer under the terms of this Addendum must undertake to maintain confidentiality and must be informed of any special data protection requirements arising from this Addendum, and the limitation of use to specific purposes as instructed. The implementation and maintenance of all technical and organisational measures required for this Addendum. Immediate notification and information to the Customer of any monitoring activities and measures undertaken by the supervisory authority. This applies especially, where a competent authority investigates the Service Company. Sub-Processors For the purpose of this Addendum, 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. Pursuant to Clause 5(h) of Attachment A: Standard Contractual Clauses, Customer acknowledges and expressly agrees that the Service Company may engage third-party sub-processors, i.e. an entity engaged by the Service Company to or any further sub-processor to process personal data, in connection with the provision of the Service Company’s Services. The Service Company shall make available to Customer a current list of sub-processors (“Sub-processor list”) who are involved in processing or sub-processing personal data in connection with the provision of the services under the Service Agreement, together with a description of the nature of services provided by each such Sub-processor. The Service Company shall provide Customer with a current version of the relevant Sub-processor List and shall provide updates before authorising any new sub-processor(s) to process Personal data in connection with the provision of the Service. If the Customer has a reasonable basis to object to the Service Company’s use of a new Sub-processor, the Customer will notify the Service Company in writing. The Service Company will use commercially reasonable efforts to make available to Customer a change in the affected Service or recommend a commercially reasonable change to Customer’s configuration or use of the affected Service to avoid processing of personal data by the objected-to new Sub-processor without unreasonably burdening Customer. If the Service Company is unable to make available such a change within a reasonable period of time, which will not exceed 30 days, the Customer may terminate the Agreement. Sub-processing in the meaning of this provision do not include ancillary services ordered by the Service Company from third parties to assist in the performance of the Addendum. These may be e.g. telecommunications services, maintenance and user support, cleaning, auditing or the disposal of data media. To safeguard the protection and security of the Customer’s data, even where ancillary services are taken from third parties, the Service Company must however conclude adequate and lawful contractual agreements and undertake monitoring activities. Monitoring of Implementation and Compliance The Service Company may use external auditors to verify its implementation of and compliance with the technical and organisational measures as defined in Attachment B. Any such audit shall be carried out no less than every 24 month by an independent third party professional. The report of such audit shall be sufficient so the Customer can reasonably verify the Service Company’s Compliance with the technical and organisational measures as defined in Attachment B and shall be made available to the Customer free of charge. The Customer may or appoint auditors to carry out an on premise audit following a request in writing at least two weeks in advance of any such audit. The Service Company undertakes to cooperate with and provide the Customer with the information required to meet his statutory obligations, and make the necessary documentation and access to its premises available. In advance of any processing activities, the Service Company must provide the Customer upon request with evidence of the implementation of the technical and organisational measures. Implementation of and compliance with any measures not specific to the services under the Service Agreement may also be verified by audit reports as described above not older than 12 month. Notification of infringements by the Service Company The Parties are aware that applicable data protection legislation may impose a duty to inform in the event of the loss or unlawful disclosure of personal data or access to it. Therefore, the Service Company undertakes to notify the Customer immediately of any unauthorised or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of personal data processed under the Service Agreement it becomes aware of or any breach of this Addendum. This also applies to serious operational faults or where there is any suspicion of an infringement of provisions relating to the protection of personal data or other irregularities in the handling of personal data belonging to the Customer. In consultation with the Customer, the Service Company must take appropriate measures to secure the data and limit any possible detrimental effect on the data subjects and will cooperate with the Customer fully to support it fulfill Customer’s duties under applicable data protection legislation. Customer’s authority to issue instructions The data may only be handled accordingly to the terms of the Service Agreement, this Addendum and the instructions issued by the Customer. The Customer retains a general right of instruction as to the processing activities, their scope and the method of data processing, which may be supplemented with individual instructions. Changes affecting the documentation in Attachment C: Scope of personal data processing have to be documented and agreed on mutually. The Service Company may only pass on information to third parties or to the data subject with the prior written consent of the Customer. The Customer must confirm any oral instructions immediately in writing or by e-mail. The Service Company must not use the personal data for any other purpose than described in Attachment C and is particularly forbidden to disclose the data to third parties. No copies or duplicates may be produced without the knowledge of the Customer. This does not apply to backup copies where these are required to assure proper data processing, or to any data required to comply with statutory retention rules. The Service Company must inform the Customer immediately, if it believes an instruction of the Customer to infringe applicable law on the protection of personal data. In that case, it may postpone the execution of the instruction in question until the Customer confirms or changes it. Deletion of data and return of data media Upon completion of the contractual work or when requested by the Customer – and no later than the end-date of the Service Agreement – the Service Company must return to the Customer all documents in its possession and all work products and data produced in connection with the Addendum, or delete them in compliance with data protection law with the prior consent of the Customer. The same applies to any test data and scrap material. The Service Company provides to the Customer a deletion log. The Service Company has to store documentation intended as proof of compliant data processing beyond the end of the Service Agreement in accordance with relevant retention periods but may hand such documentation over to the Customer after expiry of the Service Agreement. Application of Standard Contractual Clauses. The Standard Contractual Clauses (Attachment A) will apply to all processing of personal data by the Service Company where the Personal data is transferred from the European Economic Area (EEA) and/or Switzerland to outside the EEA and Switzerland, either directly or via onward transfer, to any country or recipient not recognised by the European Commission as providing an adequate level of protection for personal data. In the event of any conflict or inconsistency between any part of the Addendum and the Standard Contractual Clauses attached hereto as Attachment A, the Standard Contractual Clauses will prevail to the extent of the conflict or inconsistency. General This Addendum constitutes the entire agreement between the parties and it supersedes any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning its subject matter. If any provision of this Addendum is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remaining terms of this Addendum will remain in full effect. This Addendum shall be construed in accordance with and governed by the laws of the Federal Republic of Germany without having regard to its international private law. Exclusive place of jurisdiction shall be Frankfurt am Main, Germany. This Addendum may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument. ............................... ........................................ (Place, date) (Place, date) (Service Company) (Customer) ............................... ............................... ............................... (Signature) (Signature, optional) (Signature) (Signature) ............................... ............................... ............................... ............................... (Name in print) (Name in print, optional) (Name in print) (Name in print) Attachment A: Standard Contractual Clauses STANDARD CONTRACTUAL CLAUSES For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. the Service Company, for the purposes of this attachment the “data importer” and the Customer, for the purposes of this attachment the “data exporter” 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 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. 2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. Clause 4 Obligations of the data exporter The data exporter agrees and warrants: (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; (b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses; (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in 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. Clause 6 Liability 1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered. 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities. 3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses. Clause 7 Mediation and jurisdiction 1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established. 2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law. Clause 8 Cooperation with supervisory authorities 1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law. 2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b). Clause 9 Governing Law The Clauses shall be governed by the law of the Member State in which the data exporter is established. Clause 10 Variation of the contract The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause. Clause 11 Subprocessing 1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement. 2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established. 4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. Clause 12 Obligation after the termination of personal data processing services 1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1. ............................... ........................................ (Place, date) (Place, date) (Service Company) (Customer) ............................... ............................... ............................... (Signature) (Signature, optional) (Signature) (Signature) ............................... ............................... ............................... ............................... (Name in print) (Name in print, optional) (Name in print) (Name in print) Attachment B: General technical and organisational measures Also Appendix 2 to the Standard Contractual Clauses. This Appendix forms part of the Clauses and must be completed and signed by the parties. 1. Access control to premises and facilities Technical and organisational measures to control access to premises and facilities, particularly to check authorisation: Access control system ID reader, magnetic card, chip card see Section 6c BDSG (Issue of) keys Door locking (electric door openers etc.) Security staff, janitors Surveillance facilities Alarm system, video/CCTV monitor see Section 6b BDSG 2. Access control to systems Technical (ID/password security) and organisational (user master data) measures for user identification and authentication: Password procedures (incl. special characters, minimum length, change of password) Automatic blocking (e.g. password or timeout) Creation of one master record per user Encryption of data media 3. Access control to data Requirements-driven definition of the authorisation scheme and access rights, and monitoring and logging of accesses: Differentiated access rights (profiles, roles, transactions and objects) Reports Access Change Deletion 4. Disclosure control Measures to transport, transmit and communicate or store data on data media (manual or electronic) and for subsequent checking: Encryption/tunneling (VPN = Virtual Private Network) Electronic signature Logging Transport security 5. Input control Measures for subsequent checking whether data have been entered, changed or removed (deleted), and by whom: Logging and reporting systems 7. Availability control Measures to assure data security (physical/logical): Backup procedures Mirroring of hard disks, e.g. RAID technology Uninterruptible power supply (UPS) Remote storage Anti-virus/firewall systems Disaster recovery plan 8. Segregation control Measures to provide for separate processing (storage, amendment, deletion, transmission) of data for different purposes: “Internal client” concept / limitation of use Segregation of functions (production/testing) ............................... ........................................ (Place, date) (Place, date) (Service Company) (Customer) ............................... ............................... ............................... (Signature) (Signature, optional) (Signature) (Signature) ............................... ............................... ............................... ............................... (Name in print) (Name in print, optional) (Name in print) (Name in print) Attachment C: Scope of personal data processing Also Appendix 2 to the Standard Contractual Clauses. This Appendix forms part of the Clauses and must be completed and signed by the parties. The processing concerns the following categories of processing activities: The Personal Data transferred will be subject to the Processing activities that are necessary to provide the services as ordered in the service agreement, namely: …………………………………………………………………………………………………………… The processing concerns the following categories of data subjects The categories of data subjects affected by the processing of their personal data within this Addendum includes (list/description of categories of data subjects concerned, please delete not applicable items/add applicable items): Customers of Customer Subscribers Current or future employees of customer Suppliers Commercial representatives Others Categories of personal data The collection, processing and/or use of personal data concerns the following categories of data (list/description of categories of data, please delete not applicable items/add applicable items): Contact details: telephone, e-mail, address Contract master data (contractual relationship, interest in products or contracts) Customer history Billing and payment data Planning and management data Rating data (from third parties, e.g. rating agencies, or from public directories) Others Special categories of data (if applicable) …………………………………………………………………………………………………………… ............................... ........................................ (Place, date) (Place, date) (Service Company) (Customer) ............................... ............................... ............................... (Signature) (Signature, optional) (Signature) (Signature) ............................... ............................... ............................... ............................... (Name in print) (Name in print, optional) (Name in print) (Name in print)

Addendum Auslegung der Standardvertragsklauseln

APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES This Appendix forms part of the Clauses and must be completed and signed by the parties. This Appendix sets out the parties’ interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses. Clause 4(h) and 8: Disclosure of these Clauses 1. Data exporter agrees that these Clauses constitute data importer's confidential information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer's prior written consent unless otherwise permitted pursuant to the Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8. Clause 5(a): Suspension of data transfers and termination: 1. The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses. 2. The parties acknowledge that if data importer cannot provide such compliance for whatever reason, 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. 3. If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”). 4. If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately. The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data. Clause 5(f): Audit: 1. The parties acknowledge that data importer uses the Google Cloud Platform (“Google”) as infrastructure for its data processing operations. 2. The parties further acknowledge that Google conducts regular SOC 1, 2, and 3 compliance audits through externally employed and nationally recognized independent auditors. Google also adheres to other industry-standard security certifications, including ISO 27001, ISO 27017 and ISO 27018. 3. Data exporter may access a copy of the most recent generally available Google SOC 3 compliance report at https://cloud.google.com/security/compliance so that data exporter can Page 15 of 17 verify data importer’s compliance with the audit standards against which it has been assessed and these Clauses. 4. Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in this Appendix. Clause 5(j): Disclosure of subprocessor agreements 1. The parties acknowledge and agree that the obligation of data importer to send promptly to data exporter a copy of any onward subprocessor agreement it concludes under the Clauses applies only to the data processing terms concluded with such onward subprocessors. 2. The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the data processing terms of the subprocessor agreement to data exporter upon the data exporter's request. 3. Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon data exporter’s request, data importer shall (on a confidential basis) provide all information it reasonably can in connection with subprocessor’s data processing operations and technical and organizational security measures. Clause 6: Liability 1. Any claims brought under the Clauses shall be subject to the terms and conditions, including but to limited to, the exclusions and limitations set forth in data importer's then-current Terms of Service and Evernote Business Agreement, both available at evernote.com/legal. In no event shall any party limit its liability with respect to any data subject rights under these Clauses. Clause 11: Onward subprocessing 1. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer. 2. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out below, which collectively ensure that the onward subprocessor will provide adequate protection for the personal data that it processes: (a) any onward subprocessor must agree in writing: (i) to only process personal data in the European Economic Area or another country that the European Commission has formally declared to have an "adequate" level of protection in accordance with the requirements of EU Directive 95/46/EC (including processing pursuant to an EU-US Privacy Shield certification); or (ii) to process personal data on terms equivalent to these Clauses, or pursuant to a Binding Corporate Rules approval granted by competent European data protection authorities and whose scope extends to transfers of personal data from the territories in which the data exporter is established; and (b) data importer must restrict the onward subprocessor’s access to personal data only to what is strictly necessary to perform its subcontracted data processing services to data importer (which shall be consistent with the instructions issued to data importer by data exporter) and data importer will prohibit the onward subprocessor from processing the personal data for any other purpose.
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