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DATA PROCESSING ADDENDUM

Data Processing Addendum
(in addition to the Terms of use)

Background


This Data Processing Addendum (“DPA”) addresses the processing of customer personal information in compliance with the CCPA and/or Personal Data in accordance with the requirements of EU Data Protection Laws and is supplemental to and subject to the Terms of Service (“Terms of Service”) entered into between you (“Customer”) and SVM Analytics & Solutions Inc. (“SEDGE”) and will terminate automatically upon termination of the Terms of Service, unless earlier otherwise terminated pursuant to its terms. If the entity signing this DPA is not a party to any Terms of Service, then this DPA is not valid and is not legally binding. In the event of a conflict between any of the provisions of this DPA and the provisions of the Terms of Service, the following order of precedence will apply (in descending order): (1) the DPA, (2) the Terms of Service. No other terms or contract relating to Customer personal information will be valid or enforceable. 

Interpretation

 

  • Unless otherwise set out below, each capitalized term in this DPA shall have the meaning set out in the Terms of Service. In this DPA, unless the context requires otherwise:

  • “Agreement” means, together, the Terms of Service and this DPA; “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this Data Processing Addendum;

  • “CCPA Consumer” means a “consumer” as such term is defined in the CCPA;

  • “CCPA Personal Information” means the “personal information” (as defined in the CCPA) that SEDGE Processes on behalf of the Customer in connection with SEDGE’s provision of the Service;

  • “Controller” has the meaning given in the GDPR;

  • “Customer Personal Data” means the CCPA Personal Information and the GDPR Personal Data;

  • “Data Processing Services” means the Processing of CCPA Personal Information for any purpose permitted by the CCPA, such as for a permitted “business purpose,” as such term is defined in the CCPA, or for any other purpose expressly permitted by the CCPA;

  • “Data Subject” has the meaning given in the GDPR;

  • “EU Data Protection Laws” means all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of GDPR Personal Data, including (as applicable):

  • the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (the “GDPR”) and any applicable national legislation implementing or supplementing the GDPR;

  • the UK Data Protection Act 2018;

  • “European Economic Area” or “EEA” means the Member States of the European Union together with the United Kingdom, Iceland, Norway, and Liechtenstein;

  • “GDPR Personal Data” means the “personal data” (as defined in the GDPR) that SEDGE Processes on behalf of the Customer in connection with SEDGE’s provision of the Service;

  • “Processing” has the meaning given in the GDPR, and “Process” will be interpreted accordingly;

  • “Processor” has the meaning given in the GDPR;

  • “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Personal Data;

  • “Services” means the service(s) provided by SEDGE to the Customer under the Agreement, including the Data Processing Services;

  • “Standard Contractual Clauses” means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 set out in ANNEX 1 to this DPA or any subsequent version thereof released by the European Commission (which will automatically apply), and which includes ANNEX 2 (Details of the Processing and Transfer) and ANNEX 3 (Technical and Organizational Measures) to this DPA.

  • “Subprocessor” means any Processor engaged by SEDGE who agrees to receive from SEDGE any Customer Personal Data; and

  • “Supervisory Authority” has the meaning given in the GDPR.

Applicability to Customer Personal Data. Except as otherwise provided in this DPA, this DPA shall apply to all Processing of Customer Personal Data by or on behalf of SEDGE.

 

Requirements for GDPR Personal Data:


GDPR Personal Data Processing


  • Applicability to GDPR Personal Data. Clauses 2 through 5 of this DPA shall only apply to the Processing of GDPR Personal Data by or on behalf of SEDGE


  • Role of the Parties. For the purposes of the EU Data Protection Laws, the Parties acknowledge and agree that SEDGE acts as Processor and the Customer acts as Controller. The Customer will act as a single point of contact for its Affiliates with respect to CCPA compliance, such that if Service Provider gives notice to the Customer, such information or notice will be deemed received by the Customer’s Affiliates. The Parties acknowledge and agree that any claims in connection with the CCPA under this DPA will be brought by Customer, whether acting for itself or on behalf of an Affiliate.


  • Instructions for GDPR Personal Data Processing. SEDGE will only Process GDPR Personal Data in accordance with:


  • (a) the Agreement, to the extent necessary to provide the Service to the Customer, and


  • (b) the Customer’s written instructions, unless Processing is required by European Union or Member State law to which SEDGE is subject, in which case SEDGE shall, to the extent permitted by European Union or Member State law, inform the Customer of that legal requirement before Processing that GDPR Personal Data.


  • Customer hereby acknowledges and agrees that by virtue of using the Services it gives SEDGE instructions to process and use Personal Data in order to provide the Services in accordance with the Agreement and as described in Appendix 1 to the Standard Contractual Clauses and for the following purposes: (i) Processing in accordance with the Agreement and applicable Orders, (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by User (e.g. via email or support) where such instructions are consistent with the terms of the Agreement. Customer takes full responsibility to keep the amount of Personal Data provided to SEDGE to the minimum necessary for the performance of the Services.


  • Processing GDPR Personal Data outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and SEDGE on additional instructions for Processing.


  • Customer’s Processing of Personal Data. Customer will, in its use of the Services, comply with EU Data Protection Laws. For the avoidance of doubt, Customer’s instructions to SEDGE for the Processing of Personal Data must comply with EU Data Protection Laws. Customer has sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.


  • Required consents and notices. Where required by applicable EU Data Protection Laws, the Customer will ensure that it has obtained/will obtain all necessary consents, and has given/will give all necessary notices to Data Subjects, for the Processing of GDPR Personal Data by SEDGE in accordance with the Agreement. The Customer acknowledges that SEDGE is reliant on the Customer for direction as to the extent to which SEDGE is entitled to use and process the GDPR Personal Data. Customer warrants and represents that: a.   it has provided all applicable notices to Data Subjects required for the lawful Processing of Personal Data by the Processor in accordance with the Agreement; or b. in respect of any Personal Data collected by the Processor on behalf of the Customer, it has reviewed and confirmed the notices provided by the Processor to Data Subjects as accurate and sufficient for the lawful Processing of Personal Data by the Processor in accordance with the Agreement. Consequently, SEDGE will not be liable for any claim brought against the Customer by a Data Subject arising from any act or omission by SEDGE to the extent that such act or omission resulted from the Customer’s instructions or the Customer’s use of the Service. 


  • Indemnity. Customer agrees to indemnify the Processor and its officers, directors, employees, agents, affiliates, successors and permitted assigns (each an "Indemnified Party", and collectively the "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees and court fees, that are incurred by the Indemnified Parties (collectively, "Losses") arising out of any third party claim brought against the Processor relating to or arising out any instructions given by the Customer to the Processor under paragraph 3.1.3, any failure to obtain the consents under paragraph 3.1.6, any breach by the Customer of the warranty in paragraph 3.1.6 or any other breach by the Customer of any EU Data Protection Laws.

Transfer of GDPR Personal Data

  • Customer agrees that SEDGE may use the following (as updated from time to time in accordance with this Agreement) as Subprocessors to Process GDPR Personal Data:


  • Customer agrees that SEDGE may use subcontractors to fulfil its contractual obligations under the Terms of Service and Customer generally authorises the engagement of third party Subprocessors. SEDGE shall notify Customer from time to time of the identity of any Subprocessors it engages. Processor may make the Subprocessor information and updates available via its website. If Customer (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, Customer may request that SEDGE moves the GDPR Personal Data to another Subprocessor and SEDGE shall, within a reasonable time following receipt of such request, use reasonable efforts to ensure that the Subprocessor does not Process any such GDPR Personal Data. If it is not reasonably possible to use another Subprocessor, and Customer continues to object for a legitimate reason, either Party may terminate the Terms of Service on thirty (30) days written notice. If Customer does not object within thirty (30) days of receipt of the notice, Customer is deemed to have accepted the new Subprocessor.


  • Except as set out in clauses 3.1 and 3.2, SEDGE shall not permit, allow or otherwise facilitate Subprocessors to Process GDPR Personal Data without Customer’s prior written consent.


  • With respect to any Subprocessors engaged by SEDGE to Process GDPR Personal Data, SEDGE shall:(a) enter into a written agreement with the Subprocessor which imposes equivalent obligations on the Subprocessor with regard to their Processing of GDPR Personal Data, as are imposed on SEDGE under this DPA; and(b) at all times remain responsible for compliance with its obligations under the DPA and shall be liable to Customer for the acts and omissions of any Subprocessor as if they were SEDGE’s acts and omissions.


  • Prohibition on Transfers of Personal Data. To the extent that the Processing of GDPR Personal Data by SEDGE involves the export of such GDPR Personal Data to a country or territory outside the EEA, other than to a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects in relation to the Processing of personal data as determined by the European Commission (an “International Transfer”), such transfer shall be governed by the Standard Contractual Clauses. In the event of any conflict between any terms in the Standard Contractual Clauses, this DPA and the Terms of Service, the Standard Contractual Clauses shall prevail. The Standard Contractual Clauses apply where there is an International Transfer to a country or territory that does not ensure an adequate level of protection for the rights and freedoms of Data Subjects in relation to the processing of GDPR Personal Data as determined by the European Commission.


  • Access Requests and Data Subject Rights


  • Data Subject Requests


  • Unless otherwise required by applicable law, SEDGE shall promptly notify the Customer of any request received by SEDGE or any Subprocessor from a Data Subject in respect of the GDPR Personal Data of the Data Subject, and shall not respond to the Data Subject.


  • SEDGE shall, where possible, assist the Customer with ensuring its compliance under applicable EU Data Protection Laws, and in particular shall:(a) provide the Customer with the ability to correct, delete, block, access or copy the GDPR Personal Data of a Data Subject in accordance with the functionality of the Service, or(b) promptly correct, delete, block, access or copy GDPR Personal Data within the Service at the Customer’s request.


  • Data Subject Rights Where applicable, and taking into account the nature of the Processing, SEDGE shall use reasonable efforts to assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR.


  • Data Protection Impact Assessment


  • To the extent required under applicable EU Data Protection Laws, SEDGE shall provide reasonable assistance to Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of Customer, in each case solely in relation to Processing of GDPR Personal Data and taking into account the nature of the Processing and information available to SEDGE.


  • Requirements for CCPA Information:


  • CCPA Personal Information Processing


  • Applicability to CCPA Personal Information. Clause 4 of this DPA shall only apply to the Processing of CCPA Personal Information by or on behalf of SEDGE.


  • Role of the Parties. For the purposes of the CCPA, the Parties acknowledge and agree that SEDGE will act as a “Service Provider” as such term is defined in the CCPA, in its performance of its obligations pursuant to the Agreement.


  • Instructions for CCPA Personal Information Processing SEDGE shall not retain, use or disclose CCPA Personal Information for any purpose other than for the specific purpose of providing the Service, or as otherwise permitted by the CCPA. SEDGE acknowledges and agrees that it shall not retain, use or disclose CCPA Personal Information for a commercial purpose other than providing the Service. Processing CCPA Personal Information outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and SEDGE on additional instructions for Processing.


  • Required consents and notices. Where required by applicable laws, the Customer will ensure that it has obtained/will obtain all necessary consents, and has given/will give all necessary notices, for the Processing of CCPA Personal Information by SEDGE in accordance with the Agreement.


  • Transfer of CCPA Personal Information


  • No Disclosure of CCPA Personal Information. 


  • SEDGE shall not disclose, release, transfer, make available or otherwise communicate any CCPA Personal Information to another business or third party without the prior written consent of the Customer unless and to the extent that such disclosure is made to a Subprocessor for a business purpose, provided that SEDGE has entered into a written agreement with Subprocessor that imposes reasonably equivalent restrictions on the Subprocessor with regard to their Processing of CCPA Personal Information as are imposed on SEDGE under this DPA and the Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict SEDGE’s ability to disclose CCPA Personal Information to comply with applicable laws or as otherwise permitted by the CCPA.


  • Liability of Subprocessors of CCPA Personal Information


  • SEDGE shall at all times remain responsible for compliance with its obligations under this DPA with respect to the CCPA and will be liable to the Customer for the acts and omissions of any Subprocessor or other third party to whom SEDGE has disclosed or permitted to Process CCPA Personal Information as if they were the acts and omissions of SEDGE.


  • Consumer Rights Requests


  • CCPA Consumer Rights Requests SEDGE shall comply with all applicable requirements of the CCPA, and shall, where possible and at SEDGE’s expense, assist Customer with ensuring its compliance under applicable CCPA requirements, and in particular shall:


  • (a) provide the Customer with the ability to delete, block, access or copy the CCPA Personal Information of a CCPA Consumer, or(b) delete, block, access or copy CCPA Personal Information within the Service at the Customer’s request.


  • Notice of Requests

  • SEDGE shall notify the Customer of any request received by SEDGE or any Subprocessor from a CCPA Consumer or authorized representative in respect of the CCPA Personal Information of the CCPA Consumer. Service Provider shall direct such CCPA Consumer or authorized representative to contact the Customer.


  • Requirements for All Customer Personal Data:


  • Security


  • Security Obligations.


  • (a) Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, SEDGE will implement and maintain the technical and organizational measures set out in ANNEX 3. Customer acknowledges and agrees that these measures ensure a level of security that is appropriate to the risk.


  • (b) Upon request by Customer, and subject to the confidentiality obligations set forth in the Agreement and this DPA, SEDGE shall make available all information reasonably necessary to demonstrate compliance with Article 28 of the EU Data Protection Laws and/or this DPA specific to Personal Data.


  • Security Incident Notification


  • If SEDGE becomes aware of a Security Incident, SEDGE will (a) notify Customer of the Security Incident within 72 hours; and (b) investigate the Security Incident and provide Customer (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident. Except as required by applicable law, the obligations set out in this clause 9.2 shall not apply to Security Incidents caused by Customer.


  • SEDGE Employees and Personnel

  • SEDGE shall treat the Customer Personal Data as confidential, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Customer Personal Data.


  • Audits


  • Subject to the confidentiality obligations set forth in the Agreement and this DPA, SEDGE will, upon reasonable request from Customer with at least 60 days’ prior notice, and no more than once per annum, allow for and contribute to audits, including inspections, conducted by Customer (or a third party auditor on behalf of, and mandated by, Customer) provided (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; and (ii) are conducted to cause minimal disruption to SEDGE’s operations and business. Any expenses or costs associated with such audits or inspections shall be incurred by Customer, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Processor shall mutually agree upon the scope, timing, and duration of the audit, in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Processor regarding any non-compliance discovered during the course of an audit, and Processor shall use commercially reasonable efforts to address any confirmed material non-compliance.


  • Government Disclosure


  • SEDGE shall notify the Customer of any request for the disclosure of any Customer Personal Data by a governmental or regulatory body or law enforcement authority (including any Supervisory Authority) unless otherwise prohibited by applicable law or a legally binding order of such body or agency.


  • Termination


  • Deletion of data


  • (a) SEDGE shall, upon termination of the Agreement, provide the Customer with the ability to obtain a copy of all Customer Personal Data Processed by SEDGE by secure file transfer through the applicable functionality of the Services and shall, within 90 days and subject to clause 10.1(b), delete and procure the deletion of all copies of Customer Personal Data Processed by SEDGE or any Subprocessors.


  • (b) SEDGE may retain Customer Personal Data to the extent required by applicable laws, and only to the extent and for such period as required by applicable laws, and always provided that SEDGE shall ensure the confidentiality of all such Customer Personal Data in accordance with this DPA and the Agreement and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.


Annex 1

Standard Contractual Clauses (Processors)

For the purposes of this ANNEX 1, references to the “data exporter” and “data importer” shall be to Customer and to SEDGE respectively (each a “party”; together “the parties “).

Clause 1 – Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b)‘the data exporter’ means the controller who transfers the personal data;

(c)‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e)‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organizational 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 ANNEX 2 which forms an integral part of the Clauses.

 

Clause 3 – 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.

Clause 4 – Obligations of the data exporter 

  • The data exporter agrees and warrants:

  • 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;

  • 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;

  • that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in ANNEX 3 to this contract;

  • 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;

  • that it will ensure compliance with the security measures;

  • 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;

  • 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;

  • to make available to the data subjects upon request a copy of the Clauses, with the exception of ANNEX 3, 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;

  • 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

  • that it will ensure compliance with Clause 4(a) to (i).

Clause 5 – Obligations of the data importer 

 

  • The data importer agrees and warrants:

  • 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;

  • 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;

  • that it has implemented the technical and organizational security measures specified in ANNEX 3 before processing the personal data transferred;

  • that it will promptly notify the data exporter about:

  • any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

  • any accidental or unauthorised access, and

  • any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

  • 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;

  • 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;

  • 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 ANNEX 3 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;

  • that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

  • that the processing services by the subprocessor will be carried out in accordance with Clause 11;

  • to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.


Clause 6 

  • - Liability

  • 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.

Clause 7 – 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:

  • to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

  • 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.


Clause 8 – 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).

Clause 9 – Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10 – Variation of the contract


  • The parties undertake not to vary or modify the Clauses. This does not preclude the parties from 


  • adding clauses on business related issues where required as long as they do not contradict the 

  • Clause.

Clause 11 – Subprocessing


  • 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.

  • 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


  • 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.


Annex 2

  • Details of the Processing and Transfer of the Customer Personal Data

  • Data exporter- Customer

  • Data importer- SEDGE


  • Data subjects

  • Customer’s employees, personnel, authorized users and any other data subjects whose data Customer or its authorized users submits, transfers, loads or otherwise provides to SEDGE via the Service.


  • Categories of data

  • Business-related datasets that Customer or its authorized users submits to the Service.

Processing Operations

 

  • The Customer Personal Data will be subject to the following basic processing activities: transmitting, collecting, storing and analyzing data in order to provide the Service to Customer, and any other activities related to the provision of the Service or specified in the Terms of Service.

  • The obligations and rights of Customer

  • The obligations and rights of Customer are as set out in this DPA.


Annex 3

 

  • Technical and Organizational Security Measures


  • SEDGE maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:


  • secure any Customer Personal Data Processed by SEDGE against accidental or unlawful loss, access or disclosure;


  • identify reasonably foreseeable and internal risks to security and unauthorized access to the Customer Personal Data Processed by SEDGE;


  • minimize security risks, including through risk assessment and regular testing.


  • SEDGE will, and will use reasonable efforts to procure that its Subprocessors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.


  • SEDGE will, and will use reasonable efforts to procure that its Subprocessors periodically evaluate the security of their 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.

  • [Can add the following details if applicable:

  • Data Encryption


  • Backup and Restoration

  • Disaster Recovery]

Updates.  Processor may change these Technical and Organizational Measures at any time without notice by keeping a comparable or better level of security.  During the term of the Service, individual measures described in this Annex 3 may be replaced with new measures that serve the same purpose without materially diminishing the overall security of the Processor’s Service.