GDPR DATA PROCESSING ADDENDUM
Last Revision: March 22, 2019
This Data Processing Addendum (“DPA”), as updated from time to time, supplements any agreement (collectively, the “Agreement”)between you Customer and Elegant Markeplace., a California corporation (“Company”), governing your use of the Company’s product and services (collectively, the “Services”) when the European Union’s General Data Protection Regulation 2016/679 (“GDPR”) applies to your use of the Services to process any of your information and related data. In this DPA, the terms “we,” “us” or “our” shall refer to Company. The terms “you,” “your,” “User” or “customer” shall refer to any individual or entity who contracts with Company or uses the Services.
Definitions. Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below:
“PRODUCT/SERVICE/SITE Network” means Elegant Marketplace’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within Elegant Marketplace’s control and are used to provide the Services.
“PRODUCT/SERVICE/SITE Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.
“Customer” means you or the entity you represent.
“Customer Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Services under Customer’s Elegant Marketplace accounts.
“EEA” means the European Economic Area.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Security Incident” means a breach of Elegant Marketplace’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision 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.
1. Data Processing.
1.1. Scope and Roles. This DPA applies when Customer Data is processed by Elegant Marketplace. In this context, Elegant Marketplace will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).
1.2. Customer Controls. The Services provide Customer with a number of controls, including security features and functionalities, that Customer may use to retrieve, correct, delete or restrict Customer Data as described in the Documentation. Without prejudice to Section 5.1, Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects.
1.3. Details of Data Processing.
1.3.1. Subject matter. The subject matter of the data processing under this DPA is Customer Data.
1.3.2. Duration. As between Elegant Marketplace and Customer, the duration of the data processing under this DPA is determined by Customer.
1.3.3. Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by Customer from time to time.
1.3.4. Nature of the processing: Compute, storage and such other Services as described in the Documentation and initiated by Customer from time to time.
1.3.5. Type of Customer Data: Customer Data uploaded to the Services under Customer’s Elegant Marketplace accounts.
1.3.6. Categories of data subjects: The data subjects may include Customer’s customers, employees, suppliers and end-users.
1.4. Compliance with laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
2. Customer Instructions. The parties agree that this DPA and the Agreement (including the provision of instructions via configuration tools such as the Elegant Marketplace management console and APIs made available by Elegant Marketplace for the Services) constitute Customer’s documented instructions regarding Elegant Marketplace’s processing of Customer Data (“Documented Instructions”). Elegant Marketplace will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Elegant Marketplace and Customer, including agreement on any additional fees payable by Customer to Elegant Marketplace for carrying out such instructions. Customer is entitled to terminate this DPA and the Agreement if Elegant Marketplace declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.
3. Confidentiality of Customer Data. Elegant Marketplace will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Elegant Marketplace a demand for Customer Data, Elegant Marketplace will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, Elegant Marketplace may provide Customer’s basic contact information to the government body. If compelled to disclose Customer Data to a government body, then Elegant Marketplace will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Elegant Marketplace is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.
4. Confidentiality Obligations of PRODUCT/SERVICE/SITE Personnel. Elegant Marketplace restricts its personnel from processing Customer Data without authorization by Elegant Marketplace as described in the Elegant Marketplace Security Standards. Elegant Marketplace imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
5. Security of Data Processing
5.1. Elegant Marketplace has implemented and will maintain the technical and organizational measures for the Elegant Marketplace Network as described in the Elegant Marketplace Security Standards and this Section. In particular, Elegant Marketplace has implemented and will maintain the following technical and organizational measures:
5.1.1. security of the Elegant Marketplace Network as set out in Section 1.1 of the Elegant Marketplace Security Standards;
5.1.2. physical security of the facilities as set out in Section 1.2 of the Elegant Marketplace Security Standards;
5.1.3. measures to control access rights for Elegant Marketplace employees and contractors in relation to the Elegant Marketplace Network as set out in Section 1.1of the Elegant Marketplace Security Standards;
5.1.4. and processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Elegant Marketplace as described in Section 2 of the Elegant Marketplace Security Standards.
5.2. Customer may elect to implement technical and organizational measures in relation to Customer Data. Such technical and organizational measures include the following which may be obtained by Customer from Elegant Marketplace as described in the Documentation, or directly from a third-party supplier:
5.2.1. pseudonymization and encryption to ensure an appropriate level of security;
5.2.2. measures to ensure the ongoing confidentiality, integrity, availability and resilience of the processing systems and services that are being operated by Customer;
5.2.3. measures to allow Customer to back up and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and
5.2.4. processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Customer.
6.1. Authorized Sub-processors. Customer agrees that Elegant Marketplace may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. The Elegant Marketplace website (currently posted at https://inmotionhosting.com/compliance/sub-processors/) lists sub-processors that are currently engaged by Elegant Marketplace to carry out processing activities on Customer Data on behalf of Customer. At least 30 days before Elegant Marketplace engages any new sub-processor to carry out processing activities on Customer Data on behalf of Customer, Elegant Marketplace will update the applicable website and provide Customer with a mechanism to obtain notice of that update. If Customer objects to a new sub-processor, then without prejudice to any termination rights Customer has under the Agreement and subject to the applicable terms and conditions, Customer may move the relevant Customer Data to another Elegant Marketplace Region where the new sub-processor to whom Customer objects, is not engaged by Elegant Marketplace as a sub-processor. Customer consents to Elegant Marketplace’s use of sub-processors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorize, Elegant Marketplace will not permit any sub-processor to carry out processing activities on Customer Data on behalf of Customer.
6.2. Sub-processor Obligations. Where Elegant Marketplace authorizes any sub-processor as described in Section 6.1:
6.2.1. Elegant Marketplace will restrict the sub-processor’s access to Customer Data only to what is necessary to maintain the Services or to provide the Services to Customer and any End Users in accordance with the Documentation and Elegant Marketplace will prohibit the sub-processor from accessing Customer Data for any other purpose;
6.2.2. Elegant Marketplace will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by Elegant Marketplace under this DPA, Elegant Marketplace will impose on the subprocessor the same contractual obligations that Elegant Marketplace has under this DPA; and
6.2.3. Elegant Marketplace will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause Elegant Marketplace to breach any of Elegant Marketplace’s obligations under this DPA.
7. Data Subject Rights.
Taking into account the nature of the Services, Elegant Marketplace offers Customer certain controls as described in Sections 1.2 and 5.2 that Customer may elect to use to comply with its obligations towards data subjects. Should a data subject contact Elegant Marketplace with regard to correction or deletion of its personal data, Elegant Marketplace will use commercially reasonable efforts to forward such requests to Customer.
8. Optional Security features.
Elegant Marketplace makes available a number of security features and functionalities that Customer may elect to use. Customer is responsible for (a) implementing the measures described in Section 5.2, as appropriate, (b) properly configuring the Services, (c) using the controls available in connection with the Services (including the security controls) to allow Customer to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (d) taking such steps as Customer considers adequate to maintain appropriate security, protection, and deletion of Customer Data, which includes use of encryption technology to protect Customer Data from unauthorized access and measures to control access rights to Customer Data.
9. Security Breach Notification.
9.1. Security Incident. Elegant Marketplace will (a) notify Customer of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
9.2. Elegant Marketplace Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, Elegant Marketplace will include in the notification under section 9.l(a) such information about the Security Incident as Elegant Marketplace is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Elegant Marketplace, and any restrictions on disclosing the information, such as confidentiality.
9.3. Unsuccessful Security Incidents. Customer agrees that:
9.3.1. an unsuccessful Security Incident will not be subject to this Section 9. An unsuccessful Security Incident is one that results in no unauthorized access to Customer Data or to any of Elegant Marketplace’s equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
9.3.2. Elegant Marketplace’s obligation to report or respond to a Security Incident under this Section 9 is not and will not be construed as an acknowledgment by Elegant Marketplace of any fault or liability of Elegant Marketplace with respect to the Security Incident.
9.4. Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Elegant Marketplace selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the Elegant Marketplace management console and secure transmission at all times.
10. Elegant Marketplace Certifications and Audits.
10.1. Elegant Marketplace ISO-Certification and SOC Reports. In addition to the information contained in this DPA, upon Customer’s request, and provided that the parties have an applicable NDA in place, Elegant Marketplace will make available the following documents and information:
10.1.1. the certificates issued in relation to the ISO 27001 certification, the ISO 27017 certification and the ISO 27018 certification (or the certifications or other documentation evidencing compliance with such alternative standards as are substantially equivalent to ISO 27001, ISO 27017 and ISO 27018); and
10.1.2. the System and Organization Controls (SOC) 1 Report, the System and Organization Controls (SOC) 2 Report and the System and Organization Controls (SOC) 3 Report (or the reports or other documentation describing the controls implemented by Elegant Marketplace that replace or are substantially equivalent to the SOC 1, SOC 2 and SOC 3).
10.2. Elegant Marketplace Audits. Elegant Marketplace uses external auditors to verify the adequacy of its security measures, including the security of the physical data centers from which Elegant Marketplace provides the Services. This audit: (a) will be performed at least annually; (b) will be performed according to ISO 27001 standards or such other alternative standards that are substantially equivalent to ISO 27001; (c) will be performed by independent third-party security professionals at Elegant Marketplace’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Elegant Marketplace’s Confidential Information.
10.3. Audit Reports. At Customer’s written request, and provided that the parties have an applicable NDA in place, Elegant Marketplace will provide Customer with a copy of the Report so that Customer can reasonably verify Elegant Marketplace’s compliance with its obligations under this DPA.
10.4. Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the Services and the information available to Elegant Marketplace, Elegant Marketplace will assist Customer in complying with Customer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles 35 and 36 of the GDPR, by providing the information Elegant Marketplace makes available under this Section 10.
11. Customer Audits. Customer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing Elegant Marketplace to carry out the audit described in Section 10. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending Elegant Marketplace written notice as provided for in the Agreement. If Elegant Marketplace declines to follow any instruction requested by Customer regarding audits or inspections, Customer is entitled to terminate this DPA and the Agreement. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses.
12. Transfers of Personal Data.
12.1. Regions. Customer may specify the location(s) where Customer Data will be processed within the Elegant Marketplace Network, including the EU (Dublin) Region, the EU (Frankfurt) Region, the EU (London) Region and the EU (Paris) Region (each a “Region”). Once Customer has made its choice, Elegant Marketplace will not transfer Customer Data from Customer’s selected Region(s) except as necessary to provide the Services initiated by Customer, or as necessary to comply with the law or binding order of a governmental body. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses.
12.2. Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if Elegant Marketplace has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
13. Termination of the DPA. This DPA shall continue in force until the termination of the Agreement (the “Termination Date”).
14. Return or Deletion of Customer Data. The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this Section. For 90 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or regulatory body or it could subject Elegant Marketplace or its Affiliates to liability. No later than the end of this 90-day period, Customer will close all Elegant Marketplace accounts. Elegant Marketplace will delete Customer Data when requested by Customer by using the Service controls provided for this purpose by Elegant Marketplace.
15. Duties to Inform. Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Elegant Marketplace, Elegant Marketplace will inform Customer without undue delay. Elegant Marketplace will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
16. Entire Agreement; Conflict. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control, except that the Service Terms will control over this DPA.
Elegant Marketplace Security Standards
Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Agreement.
1. Information Security Program. Elegant Marketplace will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the Elegant Marketplace Network, and (c) minimize security risks, including through risk assessment and regular testing. Elegant Marketplace will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1. Network Security. The Elegant Marketplace Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. Elegant Marketplace will maintain access controls and policies to manage what access is allowed to the Elegant Marketplace Network from each network connection and user, including the use of firewalls or functionally equivalent tech neology and authentication controls. Elegant Marketplace will maintain corrective action and incident response plans to respond to potential security threats.
1.2. Physical Security
1.2.1. Physical Access Controls. Physical components of the Elegant Marketplace Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2. Limited Employee and Contractor Access. Elegant Marketplace provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Elegant Marketplace or its Affiliates.
1.2.3. Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. Elegant Marketplace also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.
2. Continued Evaluation. Elegant Marketplace will conduct periodic reviews of the security of its Elegant Marketplace Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. Elegant Marketplace will continually evaluate the security of its Elegant Marketplace Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
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
The entity identified as “Customer” in the DPA (the “data exporter”)
360 N. Pacific Coast Highway, Suite 1055, El Segundo, CA, USA. (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.
For the purposes of the Clauses:
a) ‘personal data ‘special categories of data ‘, ‘process/processing ‘controller ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
b) ‘the data exporter’ means the controller who transfers the personal data;
c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1which forms an integral part of the Clauses.
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 S(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.
Obligations of the data exporter
The data exporter agrees and warrants:
a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
e) that it will ensure compliance with the security measures;
f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
g) to forward any notification received from the data importer or any sub-processor pursuant to Clause S(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 11by 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;
j) and that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer¹
The data importer agrees and warrants:
a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
¹ 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(I) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, 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 recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
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 unauthorized access, and
iii. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 promptly send a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
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 11by 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 1against 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 or by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a 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 1and 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.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against its 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.
Cooperation with supervisory authorities
- 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1of 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 G), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
The data exporter is the entity identified as “Customer” in the DPA.
The data importer is Elegant Marketplace., a provider of SERVICES.
Data subjects are defined in Section 1.3 of the DPA.
Categories of data
The personal data is defined in Section 1.3 of the DPA.
The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 1.3 of the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described in the DPA.