DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) is entered into by and between Developer as defined in the Terms & Conditions located at https://www.gameofwhales.com/tou (hereinafter referred to as “Controller”) and Game of Whales Ltd. (hereinafter referred to as “Processor”), and it forms an integral part of, and is subject to, the agreement for the provision of services entered into between the Parties (the “Principal Agreement”) (the DPA together with the Principal Agreement - the "Agreement"). Controller and Processor are hereinafter jointly referred to as the “Parties” and individually as the “Party”. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
- Definitions. In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth opposite each one of them:
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
1.2. "Applicable Laws" means (a) European Union or Member State laws with respect to any Controller Personal Data in respect of which Controller is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Controller Personal Data in respect of which the Controller is subject to any other Data Protection Laws;
1.3. "Controller Personal Data" means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Agreement;
1.4. "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other applicable country;
1.5. "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.6. "GDPR" means EU General Data Protection Regulation 2016/679;
1.7. "Restricted Transfer" means (i) a transfer of Controller Personal Data from Controller to Processor; or (ii) an onward transfer of Controller Personal Data from a Processor to a Sub Processor, or between two establishments of Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) unless certain conditions have been met;
1.8. "Sub Processor" means any person (including any third party and any Processor Affiliate, but excluding an employee of Processor) appointed by or on behalf of Processor or any Processor Affiliate to Process Personal Data on behalf of the Controller in connection with the Principal Agreement; and
1.9. The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processor", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR.
- Processing of Controller Personal Data.
2.1. This DPA shall only apply with respect to Personal Data obtained by Processor as a result of Controller’s implementation of the software development kit provided by Processor (the “SDK”) in accordance with Processors written instructions, as detailed in Annex 1. Without derogating from the provisions of the Agreement, solely Controller (and not Processor) shall be liable for any excess Controller Personal Data provided or otherwise made available to Processor or any Sub Processor in the course of providing Processor's Services under the Agreement or this DPA.
2.2. Processor shall not process Controller Personal Data other than on the Controller’s documented reasonable and customary instructions in accordance with the Agreement or this DPA and that were specifically and explicitly agreed to by Processor, unless such Processing is required by Applicable Laws to which the Processor is subject. The Processor shall inform the controller of such legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
2.3. Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) to (i) Process Controller Personal Data to the extent required for the provision of Processor's Services under the Agreement or this DPA; and (ii) in particular, transfer Controller Personal Data to any country or territory, all as reasonably necessary for the provision of the Services and consistent with Sections 2.1-2.2 above, section 11 below, and the Agreement, and in accordance with Applicable Laws, especially Chapter 5 of the GDPR.
2.4. Furthermore, Controller warrants and represents that it is and will remain duly and effectively authorized to give the instruction set out in Section 2.2 and any additional instructions as provided pursuant to the Agreement and/or in connection with the performance thereof, on behalf of itself and each relevant Controller Affiliate, at all relevant times and at least for as long as the Agreement is in effect and for any additional period during which Processor is lawfully processing the Controller Personal Data. In addition Controller warrants and represents that it has obtained all permissions, consents, authorizations and approvals, including by making all notices, required for it to allow Processor to access and process personal data as permitted hereunder.
2.5. Controller sets forth the details of the Processing of Controller Personal Data, as required by Article 28(3) of the GDPR in Annex 1 (Details of Processing of Controller Personal Data), attached hereto.
- Processor Personnel. Processor shall take necessary steps to ensure that access to the Controller Personal Data is limited on a need to know/access basis, and that all Processor personnel receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access/use of Controller’s Personal Data.
- Security. The Processor shall, in relation to the Controller Personal Data, implement appropriate technical and organizational measures, including, as appropriate and applicable, those measures as required under Article 32(1) of the GDPR, to ensure an appropriate level of security for the Controller’s Personal Data, which have to be sustained throughout the entire duration of this DPA, aimed to ensure the ongoing confidentiality, security of Processing systems and services in connection with the Processing of the Controller’s Personal Data, and aimed to restore the availability and access to Controller’s Personal Data in a timely manner in the event of a physical or technical incident. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by Processing, in particular from a Personal Data Breach.
- Sub Processing.
5.1. Controller authorizes Processor and each Processor Affiliate to appoint (and permit each Sub Processor appointed in accordance with this Section 5 to appoint) Sub Processors in accordance with this Section 5 and any restrictions in the Agreement or this DPA.
5.2. Processor and each Processor Affiliate may continue to use those Sub Processors already engaged by Processor or any Processor Affiliate as of the date of this DPA, including for the purpose of cloud hosting services by reputable Sub Processors, as well as any Sub Processors whom Controller requested Processor to use.
5.3. Processor may appoint new Sub Processors and shall give Controller seven (7) days’ prior notice of the appointment of any new Sub Processor (for instance by e-mail), whether by general or specific reference to such Sub Processor (e.g., by name or type of service), including relevant details of the Processing to be undertaken by the new Sub Processor. If, within such seven (7) days period, Controller notifies Processor in writing of any objections to the proposed appointment, Processor shall not appoint for the Processing of Controller Personal Data the proposed Sub Processor until reasonable steps have been taken to address the objections raised by Controller, and Controller has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Controller’s reasonable objections then Controller may, within seven (7) days of Processor written explanation, by written notice to the Processor and with immediate effect, terminate the Agreement without bearing liability for such termination. Otherwise Controller shall be deemed to have accepted such appointment.
5.4. With respect to each Sub Processor, Processor shall:
5.4.1. before the Sub Processor first Processes Controller Personal Data, take (or have taken) reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that the Sub Processor is committed to provide the level of protection for Controller Personal Data required by the Agreement; and
5.4.2. ensure that the arrangement between the Processor and the Sub Processor is governed by a written contract, including terms which offer materially similar level of protection for Controller Personal Data as those set out in this DPA that meet the requirements of Applicable Laws.
- Data Subject Rights.
6.1. Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Taking into account the nature of the Processing, Processor shall reasonably assist Controller, to fulfil Controller's said obligations with respect to such Data Subject requests in respect of Controller Persoanl Data possessed or controlled by Processor, as applicable.
6.2. Processor shall:
6.2.1. unless otherwise required under applicable laws, promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and
6.2.2. ensure that it does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Applicable Laws, inform Controller of that legal requirement before it responds to the request.
- Personal Data Breach.
7.1. Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data, in connection with the Processing of such Controller Personal Data by the Processor, Processor Affiliates or any Sub-Processors of the Processor or the Processor Affiliates. In such event, Processor shall provide Controller with information (to the extent in Processor’s possession) to assist Controller to meet any obligations to inform Data Subjects or Data Protection authorities of the Personal Data Breach under the Data Protection Laws.
7.2. At the written request of the Controller, Processor shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the parties or necessary under Privacy Protection Laws to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
- Data Protection Impact Assessment and Prior Consultation.
8.1. At the written request of the Controller, the Processor and each Processor Affiliate shall provide reasonable assistance to Controller, at Controller's expense, with any data protection impact assessments or prior consultations with Supervising Authorities or other competent data privacy authorities, as required under any applicable Data Protection Laws. Such assistance shall be solely in relation to Processing of Controller Personal Data by the Processor.
- Deletion or return of Controller Personal Data.
9.1. Subject to this Section 9 , Processor shall promptly and in any event within up to sixty (60) days of the date of cessation of any Services involving the Processing of Controller Personal Data (the "Cessation Date"), delete or anonymize all copies of those Controller Personal Data, except such copies as authorized including under this DPA or required to be retained by the Processor in accordance with applicable law and/or regulation.
9.2. Subject to the Agreement, Processor may retain Controller Personal Data to the extent authorized or required by Applicable Data Protection Laws, provided that Processor shall ensure the confidentiality of all such Controller Personal Data and shall ensure that it is only processed for such legal purpose(s).
9.3. Upon Controller’s written request, Processor shall provide written certification to Controller that it has complied with this Section 9.
- Audit Rights
10.1. Subject to Sections 2 and 10.3, Processor shall make available to a reputable auditor mandated by Controller in coordination with Processor, upon prior written request, such information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor, provided that such third-party auditor shall be subject to Processor’s standard reasonable confidentiality obligations.
10.2. Provisions of information and audits are and shall be at Controller’s sole expense and may only arise under Section 10.1 to the extent that the Agreement does not otherwise give Controller information and audit rights meeting the relevant requirements of the applicable Data Protection Laws.
10.3. Controller shall give Processor reasonable prior written notice of any audit or inspection to be conducted under Section 10.1 and shall use (and ensure that each of its mandated auditors uses) its best efforts to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Processor need not give access for the purposes of such an audit or inspection for premises outside the Processor's control (such as data storage farms of Processor's cloud hosting providers).
- Restricted Transfers
11.1. With regard to Restricted Transfers of Controller Personal Data to a territory which is not a Member State of the European Union or a part of the EEA, Processor or Sub Processor may transfer and process Controller Personal Data in such territories under any of the following conditions:
11.1.1. If Controller Personal Data is transferred to the USA, Processor or Sub Processor has certified its compliance to the EU-US and/or Swiss-US Privacy Shield Program. In which event Processor shall maintain its certification to the Privacy Shield for so long as it maintains any Controller Personal Data in the USA. In the event that EU authorities or courts determine that the Privacy Shield is not an appropriate basis for transfers, Processor and Controller shall promptly execute an approved EU Standard Contractual Clauses (Processors), which shall be incorporated herein upon execution.
11.1.2. Controller on behalf of itself and each Controller Affiliate as Transferor and Processor on behalf of itself and each Processor Affiliate as Transferee hereby enter into the Standard Contractual Clauses set out in Annex 2 hereto.
11.1.3. Processor or Sub-Processor is incorporated in a country which the European Commission recognized as a country which ensures an adequate level of data protection.
11.2. In the event that EU authorities or courts determine that the Restricted Transfer mechanism selected above is no longer an appropriate basis for such Restricted Transfers, Controller and the Processor shall promptly take all steps reasonably necessary to demonstrate adequate protection for the Controller Personal Data, using another approved mechanism. Processor understands and agrees that Controller may terminate the Restricted Transfers as needed to comply with the Data Protection Laws.
- General Terms
12.1. Governing Law and Jurisdiction.
12.1.1. The Parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
12.1.2. This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
12.2 Order of Precedence. Nothing in this DPA reduces Processor’s obligations under the Agreement in relation to the protection of Personal Data or permits Processor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Agreement, this DPA shall prevail solely with respect to the subject matter of this DPA and solely if such conflict or inconsistency originate from the requirements of Article 28 of the GDPR (except where explicitly agreed otherwise in writing, signed on behalf of the Parties). This DPA is not intended to, and does not in any way limit or derogate from Controller’s own obligations and liabilities towards the Processor under the Agreement, and/or pursuant to the GDPR or any law applicable to Controller, in connection with the collection, handling and use of Personal Data by Controller or its Affiliates or other processors or their sub-processors, including with respect to the transfer or provision or Personal Data to Processor and/or providing access thereto to Processor.
12.3. Changes in Data Protection Laws.
12.3.1. Controller may by at least forty-five (45) calendar days' prior written notice to Processor, request in writing any variations to this DPA if they are required, as a result of any change in, or decision of a competent authority under any applicable Data Protection Law, to allow Processing of those Controller Personal Data to be made (or continue to be made) without breach of that Data Protection Law; and
12.3.2. If Controller gives notice with respect to its request to modify this DPA under Section 3.1:
126.96.36.199. Processor shall make commercially reasonable efforts to accommodate such modification request; and
188.8.131.52. Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein.
12.4. If Controller gives notice under Section 11.3.1, the Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Controller's notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within thirty (30) days, then Controller or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof).
12.5. Severance. Should any provision of this DPA be deemed invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
IN WITNESS WHEREOF, this DPA is entered into and becomes a binding part of the Agreement with effect from the later date set out below.
Controller: [Insert Company Name]
Processor: Game of Whales Ltd.
Annex 1: Details of Processing of Controller Personal Data
This Annex 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Controller Personal Data. The subject matter and duration of the Processing of the Controller Personal Data are set out in the Agreement.
The nature and purpose of the Processing of Controller Personal Data: rendering Services in the nature of mobile apps usage analysis and in-game optimization, as detailed in the Agreement.
The types of Controller Personal Data to be Processed are as follows: Ad ID and associated data, solely to the extent that such parameters are deemed as “Personal Data” under applicable law.
The categories of Data Subject to whom the Controller Personal Data relates to are as follows:
Controller's app users.
The obligations and rights of Controller. The obligations and rights of Controller and Controller Affiliates are set out in the Agreement and this DPA.
Annex 2: Standard Contractual Clauses
EC Standard Contractual Clauses for Data Processors established in countries outside of the European Economic Area
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:
Tel.: ; fax: ; e-mail:
Other information needed to identify the organisation:
(the data exporter)
Name of the data importing organisation:
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.
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.
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.
Third-party beneficiary clause
- 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.
- 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.
- 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.
- 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 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).
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.
- 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.
- 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.
- 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.
Mediation and jurisdiction
- 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.
- 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.
- 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.
- 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely………………………………………………………………………….
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.
- 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.
- 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.
- 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 …………………………………… …………………………………………………………………………………………………………………………………………………………………………
- 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.
Obligation after the termination of personal data processing services
- 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.
- 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):
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
On behalf of the data importer:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
(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.
The data exporter is (please specify briefly your activities relevant to the transfer):
The data importer is (please specify briefly activities relevant to the transfer):
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):
The personal data transferred will be subject to the following basic processing activities (please specify):
Authorised Signature ……………………
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):
 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.
 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.
 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.