Last Updated: May 24, 2018
This Data Protection Addendum ("Addendum") forms part of the Terms of Service to which this Addendum is attached (the "Terms of Service") between Panoply Technologies Inc. or any of its affiliates ("Panoply"); and the customer that is a party to the Terms of Service ("Customer").
Whereas , the EU General Data Protection Regulation 2016/679 (" GDPR") effective as of 25 May 2018 (and, possibly, equivalent requirements of other Data Protection Laws), requires Controller(s) and Processor(s) of Personal Data (all, as defined in the GDPR) to define in a contract each party's responsibilities with respect to the protection of Personal Data; and
Whereas , Customer may be the Controller and/or Processor of certain Customer Personal Data (as defined below);
Whereas , in the course of the provision of the Services, Panoply may be required to process Customer Personal Data as a Processor or a subprocessor on behalf of Customer.
Now, therefore , in consideration of the mutual obligations set out herein, the parties hereby assign the responsibilities between them with respect to protection of Customer Personal Data and agree that the terms and conditions set out below shall be added as an Addendum to the Terms of Service. Except where the context requires otherwise, references in this Addendum to the Terms of Service are to the Terms of Service as amended by, and including, this Addendum.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms of Service. Except as modified below, the terms of the Terms of Service shall remain in full force and effect.
- The terms, " Commission", " Controller", " Data Subject", " Personal Data", " Personal Data Breach", " Processing", " special categories of personal data" and " Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
- "Applicable Laws" means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which Customer is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which Customer is subject to any other Data Protection Laws;
- "Customer Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Terms of Service;
- "Contracted Processor" means Panoply or a Subprocessor;
- "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
- "EEA" means the European Economic Area;
- "EU Data Protection Laws" means the GDPR and laws of Member States implementing or supplementing the GDPR, formerly the EU Directive 95/46/EC;
"Restricted Transfer" means:
- a transfer of Customer Personal Data from Customer to a Contracted Processor; or
- an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted 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) in the absence of the Standard Contractual Clauses to be established under sections 6.4.2 or 12 below. For the avoidance of doubt, where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from the European Union to a country or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;
- "Services" means the services and other activities to be supplied to or carried out by or on behalf of Panoply for Customer pursuant to the Terms of Service;
- "Standard Contractual Clauses " means the contractual clauses set out in Annex 3, as may be amended under section14.4;
- "Subprocessor" means any person (including any third party, but excluding an employee of Panoply or any of its sub-contractors) appointed by or on behalf of Panoply to Process Personal Data on behalf of Customer in connection with the Terms of Service; and
- The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
Principles Relating to Processing of Customer Personal Data
- Customer shall comply with all applicable Data Protection Laws, including the principles relating to processing of Personal Data detailed in Article 5 of the GDPR, such as, but not limited to, collection of Personal Data lawfully and for legitimate purposes, obtaining any required consents from Data Subjects, and, if applicable, appointing a data protection officer.
Panoply Processing of Customer Personal Data
- Panoply shall not Process Customer Personal Data other than on Customer’s documented instructions unless Processing is required by Applicable Laws. Customer warrants and represents that Customer's instructions shall at all times comply with all applicable Data Protection Laws, and that the Processing of Customer Personal Data in accordance with Customer’s instructions will not cause Panoply to be in breach of any applicable Data Protection Laws.
- Customer instructs Panoply (and authorizes Panoply to instruct each Subprocessor) to:
- Process Customer Personal Data; and
- in particular, transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Terms of Service; and
- Customer warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 3.2 on behalf of all relevant affiliates of Customer.
- Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Panoply from time to time as Customer reasonably considers necessary to meet those requirements.
- To the extent required by Applicable Law, Panoply shall take reasonable steps to ensure the reliability of any employee, agent or contractor of Panoply who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Terms of Service, and to comply with Applicable Laws in the context of that individual's duties to Panoply, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
- To the extent required by Applicable Law, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing by Panoply, and in order to ensure a level of security appropriate to the risks presented by such Processing, including, as appropriate, the measures referred to in Article 32(1) of the GDPR, Panoply shall implement in relation to the Services the technical and organizational measures summarized in Annex 2 of this Addendum. From time to time, Panoply may make reasonable amendments to Annex 2 by written notice to Customer (either via email or by posting notice of such changes on Panoply's website, or by any other reasonable means). Panoply does not warrant and hereby specifically disclaims any representation that the security measures implemented by it in connection with the Services are appropriate for special categories of personal data or other types of data that are sensitive in nature.
- Customer acknowledges and agrees that the Services are not designed (or intended) for Panoply to access any Customer data, including the Customer Personal Data, and Panoply does not have any knowledge as to what types of Customer Personal Data, if any, are processed by Panoply on behalf of Customer, and that therefore Panoply is not in the position to assess what measures are appropriate to the Customer Personal Data. Customer represents and warrants to Panoply that Customer shall not upload or otherwise transfer to the Services any Customer Personal Data that may constitute special categories of personal data pursuant to any applicable Data Protection Laws. Customer further represents and warrants that it has assessed the security measures implemented by Panoply and has found them appropriate to any Customer Personal Data, and agrees to be solely responsible (as between the parties and towards data subjects and supervisory authorities) if those measures, in themselves, do not meet the standard of appropriateness with respect to the security of the Customer Personal Data that may be required by any applicable Data Protection Laws.
- Customer further acknowledges and agrees that the Customer Personal Data will be stored by Panoply on the infrastructure of a third-party infrastructure provider (the "Cloud Infrastructure Provider") and that the Cloud Infrastructure Provider implements its own security measures with respect to the cloud infrastructure, at its discretion. If Customer has any specific requirements as to the security measures in connection with the cloud infrastructure implemented, Customer shall notify Panoply of such requirements and the parties shall approach the Cloud Infrastructure Provider for possible solutions.
- Customer authorizes Panoply to appoint (and permits each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors for the Processing of Customer Personal Data in accordance with this section 6 and any restrictions in the Terms of Service.
- Panoply may continue to use those Subprocessors already engaged by Panoply as of the date of this Addendum, including the Cloud Infrastructure Provider, subject to Panoply in each case as soon as practicable meeting the obligations set out in section 6.4.
- If and to the extent required by Applicable Law, Panoply shall give Customer prior written notice of the appointment and/or replacement of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 14 days of receipt of that notice, Customer notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment, Customer may terminate the Terms of Service with immediate effect by written notice to Panoply, to the extent that it relates to services which require the use of the proposed Subprocessor. Upon such termination, Panoply shall refund to Customer the unused portion, if any, of the fees paid by Customer to Panoply for the services that were terminated due to Customer's objection to the appointment of a Subprocessor. If no notice of objection was received by Panoply from Customer in the period specified above, Customer shall be deemed to accept and consent to the appointment of the Subprocessor.
- To the extent required by Applicable Law, with respect to each Subprocessor, Panoply shall:
- ensure that the arrangement between Panoply and the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Addendum;
- if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are incorporated into the agreement between Panoply and the Subprocessor, or before the Subprocessor first Processes Customer Personal Data, procure that it enters into an agreement incorporating the Standard Contractual Clauses with Customer or has alternative appropriate safeguards in place.
- Panoply shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Panoply.
- To the extent required by Applicable Law, Panoply acknowledges that if a Subprocessor fails to fulfil its data protection obligations, Panoply shall remain fully liable to the Customer for the performance of the Subprocessor’s obligations.
Data Subject Rights
- Taking into account the nature of the Processing carried out by Panoply and the limited information available to it, Panoply shall assist Customer, at Customer's expense, with the fulfillment of Customer's obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws, insofar as and to the extent that this is possible and cannot be reasonably attained without Panoply's assistance.
- Panoply shall:
- promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
- ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Contracted Processor is subject.
Personal Data Breach
- If and to the extent required by Applicable Law, Panoply shall notify Customer without undue delay upon Panoply or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws, to the extent such information is available to Panoply.
- To the extent required by Applicable Law, Panoply shall co-operate with Customer and take, at Customer's expense, such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach, insofar as and to the extent that this is possible and cannot be reasonably attained without Panoply's assistance.
Data Protection Impact Assessment and Prior Consultation
- If and to the extent required by Applicable Law, Panoply shall provide reasonable assistance to Customer, at Customer's expense, with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data protection authorities, which Customer reasonably considers to be required of it by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case insofar as and to the extent that this is possible and solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Deletion or return of Customer Personal Data
- On expiration or termination of Customer’s right to use the Services, Panoply shall delete or return to Customer the Customer Personal Data and copies thereof in accordance with the terms and timelines specified in the Terms of Service, unless Applicable Laws require storage of Customer Personal Data. If Panoply retains Customer Personal Data pursuant to Applicable Laws, Panoply shall maintain the confidentiality of all such Customer Personal Data 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.
- Customer acknowledges and agrees that a copy of Customer Personal Data generated by Panoply's automated computer archival back-up systems may be retained by Panoply for a period of up to 14 months after expiration or termination of the Services and thereafter such copy shall be deleted. Panoply shall ensure the confidentiality of such copy of the Customer Personal Data.
- If and to the extent required by Applicable Law and subject to section 11.2, Panoply shall make available to Customer, upon request and at Customer's expense, all information reasonably necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.
- Notwithstanding the foregoing, with respect to the Cloud Infrastructure Provider, Panoply shall provide to Customer only such information and audit rights, if any, that are made available or granted to Panoply by the Cloud Infrastructure Provider.
- Customer may only mandate an auditor for the purposes of section 11.1 if Panoply has given its consent to such auditor, such consent not to be unreasonably withheld or delayed.
- Customer shall give Panoply reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to Panoply's premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Panoply need not give access to its premises for the purposes of such an audit or inspection:
- to any individual unless he or she produces reasonable evidence of identity and authority;
- outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer undertaking an audit has given notice to Panoply that this is the case before attendance outside those hours begins; or
- for the purposes of more than one audit or inspection in any calendar year, except for any additional audits or inspections which:
- Customer reasonably considers necessary because of genuine concerns as to Panoply's compliance with this Addendum; or
- Customer is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Customer has identified its concerns or the relevant requirement or request in its notice to Panoply of the audit or inspection.
- Audits conducted by Customer pursuant to section 11.1 above shall be at Customer's expense and provided that Customer and/or the auditor mandated by Customer to conduct an audit have signed a confidentiality undertaking towards Panoply. If Customer notifies Panoply of its will to conduct an audit, Panoply may, in its sole discretion, choose to conduct the audit by itself or an auditor mandated by it and provide Customer with the report of such audit.
- If required by Applicable Law, with respect to any Restricted Transfer from Customer (as "data exporter") to Panoply (as "data importer") the parties hereby enter into the Standard Contractual Clauses attached hereto as Annex 3. From time to time, Panoply may make reasonable amendments to the Standard Contractual Clauses by written notice to Customer (either via email or by posting notice of such changes on Panoply's website, or by any other reasonable means).
- In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail with regard to the subject matter of such Restricted Transfer.
Limitations of Liability
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PANOPLY'S LIABILITY UNDER THIS ADDENDUM OR ANY DATA PROTECTION LAWS SHALL BE SUBJECT TO THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THE TERMS OF SERVICE. CUSTOMER AGREES THAT ANY REGULATORY PENALTIES INCURRED BY PANOPLY IN RELATION TO THE CUSTOMER PERSONAL DATA THAT ARISE AS A RESULT OF, OR IN CONNECTION WITH, CUSTOMER’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS ADDENDUM AND THE GDPR SHALL COUNT TOWARDS AND REDUCE PANOPLY’S LIABILITY UNDER THE TERMS OF SERVICE AS IF IT WERE LIABILITY TO THE CUSTOMER UNDER THE TERMS OF SERVICE.
Governing law and jurisdiction
Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
Order of precedence
- the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Terms of Service with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, interpretation, validity or termination or the consequences of its nullity; and
- this Addendum 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 Terms of Service.
- Subject to section 12.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Terms of Service and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail. Changes in Data Protection Laws, etc.
- Customer may propose any variations to this Addendum and/or the Standard Contractual Clauses which Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
- 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 such requirements as soon as is reasonably practicable. Severance
- This Addendum is executed by duly authorized representatives of Customer and Panoply and constitutes a legal, valid and binding obligation of Customer and Panoply, enforceable against each of them in accordance with the terms of this Addendum
- Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (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.
ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing of the Customer Personal Data are set out in the Terms of Service and this Addendum.
The nature and purpose of the Processing of Customer Personal Data
The nature and purpose of the Processing of the Customer Personal Data, if any, are rendering data warehouse services (including storage and computing) and related services, as further detailed in the Terms of Service.
The types of Customer Personal Data to be Processed
The Services are not designed (or intended) for Panoply to access any Customer data, including any Customer Personal Data, and therefore Panoply does not have any knowledge as to what types of Customer Personal Data, if any, are processed by Panoply on behalf of Customer. Without prejudice to any of the foregoing, the security measures implemented by Panoply in connection with the Services are designed and intended for non-sensitive types of Personal Data and Personal Data that are not special categories of personal data, for example: email address, phone number, work place, location data and online identifier (IP address).
The categories of Data Subjects to whom the Customer Personal Data relates
As explained above, Panoply does not have any knowledge as to the nature of the Customer Personal Data and the Data Subjects to whom it relates, but Panoply assumes that such may include Customer's clients, potential clients, end users, contractors, suppliers, service providers, employees and agents.
The obligations and rights of Customer
The obligations and rights of Customer are set out in the Terms of Service and this Addendum, as may be amended from time to time in accordance with the terms thereof and hereof.
ANNEX 2: SUMMARY OF PANOPLY'S SECURITY MEASURES
Panoply shall implement the following measures:
• Network Security – Panoply’s network is encrypted with SSL and protected from the public network by a firewall. Panoply employs commercially reasonable efforts to monitor its systems, networks and operations for viruses and other intrusions and security breaches.
• User Account Security – Panoply personnel and Customers’ authorized users are authenticated through the use of a unique identifier and password combination. All passwords must fulfill defined minimum requirements, are stored in encrypted form and, with respect to Panoply personnel, must be changed regularly. When personnel leave the Company and when Customers cease to receive Services, their access rights are revoked.
• Organizational Controls – Panoply has developed internal policies and standards with respect to data security. Panoply personnel are periodically educated as to these internal policies and standards. Administrator accounts with broad access, such as those used to accomplish data backup services, are closely monitored with both technical and organizational controls to assure appropriate use.
ANNEX 3: STANDARD CONTRACTUAL CLAUSES
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
(the "data exporter")
andPanoply Technologies Inc.
(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 jurisdiction in which the data exporter is established;
(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the 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.
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 in the jurisdiction where the data exporter is established) and does not violate the relevant provisions of that jurisdiction;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any 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 organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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.
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.
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 jurisdiction in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
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).
The Clauses shall be governed by the law of the jurisdiction in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the 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 jurisdiction in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
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.
The data exporter is Customer.
The data importer is Panoply Technologies Inc.
As described in Annex 1 of the Data Protection Addendum to which these Clauses are annexed ("Addendum").
Categories of data
As described in Annex 1 of the Addendum
As described in Annex 1 of the Addendum.
Subprocessing operations Data exporter acknowledges that data importer has subprocessed under the Clauses certain processing activities to a third-party cloud infrastructure service provider, Amazon Web Services Inc. Should data importer, acting in its sole discretion, choose to replace such third-party cloud infrastructure service provider, data importer shall notify data exporter of such change.