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Data Processing Addendum

This Data Processing Addendum (“DPA”) to the Technology-Enabled Services Agreement, or other similar master agreement relating to certain Services with Omaolcatha Business Operating Systems Ltd. (the “Agreement”) between Client and Omaolcatha Business Operating Systems Ltd.(“CBOSIT”), to reflect the parties’ agreement about Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws and Regulations. References to the Agreement will be construed as including without limitation this DPA.

1. Definitions. “Data Protection Laws and Regulations” means the regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement, including the EU Directive 95/46/EC (the “Directive”) and, when effective, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); “Personal Data” means any information relating to an identified or identifiable natural person that is governed by the Data Protection Laws and Regulations. “Data Subject,” “Controller,” “Processor,” and Processing” shall have the meaning as defined under the Directive, and when in effect, GDPR. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.

2. Processing of Personal Data.

a. Roles of the Parties. The parties agree that Client is the Controller solely responsible for determining the purposes and means of the processing of Personal Data, and CBOSIT is Client’s processor responsible for Processing Personal Data on behalf of the Controller. CBOSIT shall only take action pursuant to instructions of Client with regard to the Processing of Personal Data and transferring Personal Data to the United States, Japan, India or to other jurisdictions authorized by Client. CBOSIT may engage sub-processors to Process Personal Data pursuant to the requirements set forth in Section 2e “Sub-Processors” below.

b. Client’s Processing of Personal Data. Client is solely responsible for its compliance with the Data Protection Laws and Regulations, including without limitation the lawfulness of any transfer of Personal Data to CBOSIT and Processing of Personal Data. For the avoidance of doubt, but not by way of limitation, Client’s instructions for the Processing of Personal Data must comply with Data Protection Laws and Regulations. Client shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Client acquires Personal Data, including providing any required notices to, and obtaining any necessary consent from Data Subjects. Client takes full responsibility to keep the amount of Personal Data provided to CBOSIT to the minimum necessary for the performance of the Services. Client shall be solely responsible for establishing and maintaining any data processing registers or overview as required by any applicable law, including without limitation the Data Protection Laws and Regulations. Client acknowledges and consents that certain business operations necessary for the fulfilment of CBOSIT’s Services hereunder may have been transferred or will be transferred in the future to one or more dedicated CBOSIT affiliates independently managing the provision of such Services.

c. Client’s Right to Issue Instructions. The Processing of Personal Data by CBOSIT shall only be in accordance with Client’s instructions. Subject to the terms of this DPA and with mutual agreement of the parties, Client may issue written instructions concerning the type, extent and procedure for the Processing of Personal Data. Client is responsible for ensuring that all individuals who provide written instructions to CBOSIT are authorized by Client to issue instructions to CBOSIT. Client’s initial instructions for the Processing of Personal Data are defined by the Agreement, Schedule 1 to this DPA, and any applicable order form or Statement of Work regarding the software and Services. Any changes to the subject matter of Processing of Personal Data and of procedures shall be agreed upon by the parties in writing prior to becoming effective.

d. Details of Processing. The initial nature and purpose of the Processing, duration of the Processing, categories of Data Subjects, and types of Personal Data are set forth on Schedule 1.

e. CBOSIT Sub-Processors. Client agrees that CBOSIT may engage sub-processors for the Processing of Personal Data in accordance with the DPA. A list of sub-processors including their addresses is available upon request. When engaging sub-processors, CBOSIT shall enter into agreements with the sub-processors to bind them to obligations which are substantially similar or more stringent than those set out in this DPA. To the extent required, Client explicitly mandates CBOSIT to sign such agreements directly with the sub-processors. Client will not directly communicate with CBOSIT’s sub-processors about the software or Services, unless agreed to by CBOSIT in CBOSIT’s sole discretion. CBOSIT will notify Client in advance of any changes to sub-processors using regular communication means such as email, websites, and portals. If Client reasonably objects to the addition of a new sub-processors (e.g., such change causes Client to be non-compliant with applicable Data Protection Laws and Regulations), Client shall notify CBOSIT in writing of its specific objections within thirty (30) days of receiving such notification. If Client does not object within such period, the addition of the new sub-processor and, if applicable, the accession to this DPA shall be considered accepted. If Client objects to the addition of a new sub-processor and CBOSIT cannot accommodate Client’s objection, Client may terminate the Services and software in writing within sixty (60) days of receiving CBOSIT’s notification.

f. Return or Deletion of Client Personal Data. Unless otherwise required by applicable Data Protection Laws and Regulations, CBOSIT will destroy or return to Client the Client Personal Data upon termination or expiration of the Services within a reasonable period. CBOSIT shall have no obligation to return Client Personal Data to Client if the Client Personal Data is available to Client.

3. Representations and Warranties. Client represents, warrants, and covenants that (a) the Personal Data has been collected and transferred to CBOSIT in accordance with the Data Protection Laws and Regulations; (b) prior to its transfer to CBOSIT Technology, the Personal Data has been maintained, retained, secured and protected in accordance with the Data Protection Laws and Regulations; (c) Client will respond to inquiries from Data Subjects and from applicable regulatory authorities concerning the Processing of Personal Data, and will alert CBOSIT of any inquiries from Data Subjects or from applicable regulatory authorities that relate to CBOSIT’s Processing of Personal Data; (d) prior to the collection of Personal Data, Client has obtained all necessary consents from a Data Subject for CBOSIT’s Processing of Personal Data in accordance with this DPA, including Processing of Personal Data; (e) Client will make available a copy of this Agreement to any Data Subject or regulatory authorities as required by the Data Protection Laws and Regulations or upon the reasonable request of a Data Subject or a regulatory authority; (f) Client shall be solely responsible and liable for its compliance with the Data Protection Laws and Regulations; and (g) Client will only transfer and provide CBOSIT with such Personal Data required and requested by CBOSIT in writing to perform the Services.

4. Rights of Data Subjects. CBOSIT shall, to the extent legally permitted, promptly notify Client if it receives a request from a Data Subject for access to, correction, amendment or deletion of such Data Subject’s Personal Data and, to the extent applicable, CBOSIT shall provide Client with commercially reasonable cooperation and assistance in relation to any such complaint, notice, or communication. CBOSIT shall correct erroneous Personal Data as directed by Client in writing or pursuant to a process mutually agreed to in writing by the parties. Client shall use its best efforts to respond to and resolve promptly all requests from Data Subjects which CBOSIT provides to Client. If Data Protection Laws and Regulations require CBOSIT to take any corrective actions without the involvement of Client, CBOSIT shall take such corrective actions and inform Client. Client shall be responsible for any reasonable costs arising from CBOSIT’s provision of such assistance under this Section. To the extent legally permitted, Client shall be responsible for any costs arising from CBOSIT’s provision of such assistance.

5. CBOSIT Personnel. CBOSIT shall train personnel engaged in the Processing of Personal Data of the confidential nature of the Personal Data and provide appropriate training based on their responsibilities. CBOSIT shall execute written agreements with its personnel to maintain the confidentiality of Personal Data, including post termination of the personnel engagement. CBOSIT shall use commercially reasonable efforts to limit access to Personal Data to personnel who require such access to perform the Services under the Agreement. If required by Data Protection Laws and Regulations, CBOSIT shall appoint a data protection officer. Upon request, CBOSIT will provide the contact details of the appointed person.

6. Security. CBOSIT will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the Data Subjects. In assessing the appropriate level of security, CBOSIT shall weigh the risks presented by the Processing of Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

7. Audit

a. Audit Requests. Subject to Section 7(c), upon Client’s written request, CBOSIT will provide Client with the most recent summary audit report(s) concerning the compliance and undertakings in this DPA. CBOSIT’s policy is to share methodology and executive summary information, not raw data or private information. CBOSIT will reasonably cooperate with Client by providing available additional information to help Client better understand such compliance and undertakings. To the extent it is not possible to otherwise satisfy an audit obligation mandated by applicable Data Protection Laws and Regulations and subject to Section 7(c), only the legally mandated entity (such as a governmental regulatory agency having oversight of Client’s operations) may conduct an onsite visit of the facilities used to provide the Services. Unless mandated by Data Protection Laws and Regulations, no audits are allowed within a data centre for security and compliance reasons. After conducting an audit under this Section 7 or after receiving an CBOSIT report under this Section 7, Client must notify CBOSIT of the specific manner, if any, in which CBOSIT does not comply with any of the security, confidentiality, or data protection obligations in this DPA, if applicable. Any such information will be deemed Confidential Information of CBOSIT.

b. Sub-Processors. Client may not audit CBOSIT’s sub-processors without CBOSIT’s and CBOSIT’s sub-processor’s prior agreement. Client agrees its requests to audit sub-processors may be satisfied by CBOSIT or CBOSIT’s sub-processors presenting up-to-date attestations, reports or extracts from independent bodies, including without limitation external or internal auditors, CBOSIT’s data protection officer, the IT security department, data protection or quality auditors or other mutually agreed to third parties or certification by way of an IT security or data protection audit. Onsite audits at sub-processors premises may be performed by CBOSIT acting on behalf of Controller.

c. Audit Process. Unless required by Data Protection Laws and Regulations, Client may request a summary audit report(s) or audit CBOSIT no more than once annually. Client must provide at least four (4) weeks’ prior written notice to CBOSIT of a request for summary audit report(s) or request to audit. The scope of any audit will be limited to CBOSIT’s policies, procedures and controls relevant to the protection of Client’s Personal Data and defined in Schedule 1. Subject to Section 7(b), all audits will be conducted during normal business hours, at CBOSIT’s principal place of business or other CBOSIT location(s) where Personal Data is accessed, processed or administered, and will not unreasonably interfere with CBOSIT’s day-to-day operations. An audit will be conducted at Client‘s sole cost and by a mutually agreed upon third party who is engaged and paid by Client, and is under a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement, obligating it to maintain the confidentiality of all CBOSIT Confidential Information and all audit findings. Further, Client agrees to pay the costs of any support provided by CBOSIT (including internal resources) based on CBOSIT’s then-current rates. Before the commencement of any such on-site audit, CBOSIT and Client shall mutually agree upon the timing, and duration of the audit. CBOSIT will reasonably cooperate with the audit, including providing auditor the right to review but not to copy CBOSIT security information or materials during normal business hours. Client shall, at no charge, provide to CBOSIT a full copy of all findings of the audit. The results of the audit will be considered “Confidential Information” of CBOSIT.

8. Data Transfer Mechanisms. Client acknowledges that CBOSIT is a US based entity and understands and agrees that Client’s Personal Data may be transferred to the United States, Japan, India or to other jurisdictions authorized by the Client for processing. CBOSIT undertakes that it shall only process the Personal Data in accordance with the Client’s instructions. The parties agree that all such transfers of Personal Data from Client to CBOSIT within the scope of this Addendum shall happen in compliance with applicable Data Protection Laws and Regulations, including signing and executing the Standard Contractual Clauses in the event of a Personal Data transfer arising out of the European Union.

a. Standard Contractual Clauses (“SCC”) In addition to the obligations specified under the Standard Contractual Clauses, which have been accepted, signed and executed by the parties hereto, Apprio as a data importer warrants and undertakes that:

It shall implement adequate safeguards including appropriate technical and organizational measures to effectively prevent unauthorized or covert access to the Personal Data including in-transit access by law enforcement agencies in the recipient country. (such as encryption, pseudonimisation etc.).
To the extent permitted by law, where the country of the importer or its law enforcement agencies or where persons authorized or required by applicable local laws of the recipient country (i.e. US) to conduct surveillance activities (which includes the interception of and access to the Personal Data) require access to CBOSIT’s data, which extends to the Personal Data that has been transmitted to CBOSIT by the Client subject to the Standard Contractual Clauses, CBOSIT commits that:

It will not voluntarily assist such persons in carrying out their responsibilities under the applicable law, unless CBOSIT is required to do so under applicable law or pursuant to an order from a court of competent jurisdiction;
It will promptly notify the Client about any legally binding request (s) from a law enforcement authority, for disclosure of Personal Data, unless otherwise prohibited to do so, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
CBOSIT shall comply with its obligation to notify the Client that it can no longer comply with the requirements of the SCC in case of such demands, as those noted above and;
Shall cease Processing of Personal Data, except where the Client has expressly authorized CBOSIT to continue the Personal Data transfer and all necessary and appropriate permissions have been received, as may be required from any regulatory authorities.

Where CBOSIT notifies the Client of its inability to comply with the provisions of these contractual clauses arising from the aforementioned provisions, CBOSIT shall not be liable to the other parties for damages arising out of such inability to comply with the provisions of these contractual clauses.

b. EU-U.S. and SWISS-U.S. Privacy Shield Self-certification. Notwithstanding that all data transfers from Client to CBOSIT are to be undertaken by entering into and executing the Standard Contractual Clauses, CBOSIT continues to self-certify to and comply with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, as administered by the US Department of Commerce, and CBOSIT shall maintain its self-certifications to and compliance with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks for the term of the Agreement.

9. Limitation of Liability. Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the “Limitation of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, CBOSIT’s and its affiliates’ total liability for all claims from the Client arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA.

10. Governing Law. The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws and Regulations.

Schedule 1

Processing Details

Nature and Purpose of Processing

Provisioning of IT services, including services related to the implementation and integration of public cloud applications, including software as a service and platform as a service technology such as Salesforce, Workday, and Cornerstone.

Duration of Processing and Retention of Data

CBOSIT will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing. CBOSIT will retain Personal Data as long as required under law, unless otherwise agreed to in writing.

Categories of Data Subjects

Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

1. Clients

2. Employees and their respective dependents, beneficiaries, and emergency contacts

3. Contractors (including contingent workers)

4. Volunteers, interns, temporary, and casual workers

5. Suppliers

6. Commercial representatives

7. Freelancers, agents, consultants, and other professional respondents, and their respective dependents, beneficiaries, and emergency contacts

8. Prospective employees and temporary staff

9. Advisors, consultants, and other professionals

Type of Personal Data

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

1. Human resources related identification data and employee master data (which may include name, address, telephone number, email… etc.)

2. Client contact details related to Client relationship management (CRM) software

3. Billing and payment data

EUROPEAN COMMISSION

DIRECTORATE-GENERAL JUSTICE

Directorate C: Fundamental rights and Union citizenship

Unit C.3: Data protection

Commission Decision C(2010)593

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

Name of the data exporting organisation :....................................................................................................

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

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

Other information needed to identify the organisation: …………………………………………………………… (the data exporter)

And

Name of the data importing organisation:...................................................

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

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

Other information needed to identify the organisation: …………………………………………………………………(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[1];

(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[2]

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, namely………………………………………………………………………….

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

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[3]. 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, namely …………………………………… …………………………………………………………………………………………………………………………………………………………………………

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.

On behalf of the data exporter:

Name (written out in full):

Position:

Address:

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

Signature……………………………………….

(stamp of organisation)

On behalf of the data importer:

Name (written out in full):

Position:

Address:

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

Signature……………………………………….

(stamp of organisation)

Appendix 1 to the Standard Contractual Clauses

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

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

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

………………………………………………………………………………………………………………………………………………………………………………………………

Data importer

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

Data subjects

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

Categories of data

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

Special categories of data (if appropriate)

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

Processing operations

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

DATA EXPORTER

Name:………………………………

Authorised Signature ……………………

DATA IMPORTER

Name:………………………………

Authorised Signature ……………………

Appendix 2 to the Standard Contractual Clauses

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

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

…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

[1] Parties 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.

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