Directly Terms & Policies
Exhibit to the MSA: Data Protection Addendum (“DPA")
This Data Protection Addendum (“DPA” or "Addendum") is incorporated into the Master Subscription Agreement or “MSA” (collectively, the “Agreement”) between the parties identified in the applicable Directly Order Form for the provision of the Directly Platform and related services (collectively, the “Services”). If there is any conflict between this DPA and the Agreement regarding the parties’ respective privacy and security obligations, the provisions of this DPA shall control.
1. Definitions and Scope
1.1. Terms such as “Processing”, “Personal Data”, “Data Controller” and “Processor” shall have the meaning ascribed to them in the EU Data Protection Law.
1.2. "Applicable Data Protection Law" shall mean all data protection and privacy laws and regulations applicable to personally identifiable data under this Agreement, including data protection law in the European Economic Area (for example, EU Regulation 2016/679, i.e., GDPR).
1.3 “Customer Account Data” shall mean personal data of individuals residing in the European Economic Area (“EEA”) that relates to a Customer’s access to the Services by authorized Customer personnel, such as the names and/or contact information of individuals authorized by Customer to access the Services and billing information of individuals that Customer has associated with its Directly accounts.
1.4 “Customer Data” shall mean all training and other data provided by Customer relating to individuals residing in the EEA, as specified in an Order Form for the purposes of providing the Services under the Agreement, including training AI systems, updating Customer’s knowledge database, answering customer service questions.
1.5 “Privacy Shield Framework” shall mean the EU-US and/or Swiss-US Privacy Shield self-certification program operated by the US Department of Commerce.
1.6 “Privacy Shield Principles” shall mean the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles).
1.7. Scope. Insofar as the Data Processor will be processing Personal Data subject to Applicable Data Protection Law on behalf of the Data Controller in the course of the performance of the Agreement with the Data Controller the terms of this Data Protection Agreement shall apply. An overview of the categories of Personal Data, the types of Data Subjects, and purposes for which the Personal Data are being processed is provided in Annex 1.
1.8. Relationship of the Parties. The parties acknowledge and agree that with regard to the processing of Customer Data, Customer is a controller or processor, as applicable, and Directly is a processor. With regard to the processing of Customer Account Data, Customer is a controller or processor, as applicable, and Directly is an independent controller, not a joint controller with Customer. Each party shall comply with its obligations under Applicable Data Protection Law, and this Addendum, when processing Personal Data.
2. Details of the processing.
2.1 Subject Matter: Directly’s provision of the Services to Customer.
2.2 Purpose of the Processing: The purpose of the data processing under this Addendum is the provision of the Directly Services as specified by Customer in the applicable Order Form(s).
2.3 Categories of Data: Data relating to Customer end user service questions and answers provided by Customer to Directly via the Platform and Services.
2.4 Categories of Data Subjects: Data subjects may include Customer’s customers, employees, suppliers and end users about whom data is provided to Directly via the Platform and Services by (or at the direction of) Customer.
2.5 Duration of the Processing: The Data Processor shall process Personal Data until the date of termination of the agreement, unless instructed otherwise by the Data Controller, or until such data is returned or destroyed on instruction of the Data Controller.
3. Customer Instructions. Customer appoints Directly as a processor to process Customer Data on behalf of, and in accordance with, Customer’s instructions as set out in the Agreement and this Addendum, as otherwise necessary to provide the Services, or as otherwise agreed in writing. Customer shall ensure that its instructions comply with all laws, regulations and rules applicable to the Customer Data, and that Directly’s processing of the Customer Data in accordance with Customer’s instructions will not cause Directly to violate any applicable law, regulation or rule, including Applicable Data Protection Law. Directly agrees not to access or use Customer Data, except as necessary to maintain or provide the Services, or as necessary to comply with the law or other binding governmental order.
4. Responding to Third Party Requests. In the event that any request, correspondence, enquiry or complaint from a data subject, regulatory or third party is made directly to Directly in connection with Directly’s processing of Customer Data, Directly shall promptly inform Customer providing details of the same, to the extent legally permitted. Unless legally obligated to do so, Directly shall not respond to any such request, inquiry or complaint without Customer’s prior consent except to confirm that the request relates to the customer or end user to which Customer hereby agrees.
5. Confidentiality Obligations of Directly Personnel. Directly will ensure that any person it authorizes to process the Customer Data shall protect the Customer Data in accordance with Directly's confidentiality obligations under the Agreement.
6. Subcontracting. Customer consents to Directly engaging third party sub-processors to process Customer Data under this DPA provided that:
6.1 A current list of sub-processors, including the identity of each of those sub-processors and its country location, has been provided to Customer or is available at: https://www.directly.com/legal/subprocessors (“Sub-processor List”). Directly will either send Customer an email informing Customer of any new sub-processors or Directly will enable Customer to receive notifications of new sub-processors by e-mailing firstname.lastname@example.org with the subject “Subscribe”. If Customer objects to a new sub-processor (which objection must be reasonable, based on specific written details, and made, if at all, within 30 days after Directly has first included the proposed new sub-processor), the parties will work in good faith to resolve the objection in accordance with subsection 6.2 below.
6.2 Customer may object to Directly's appointment or replacement of a sub-processor within ten (10) days of Directly informing Customer of such appointment or replacement (as described in Section 6.1), provided such objection is in writing and based on reasonable grounds relating to data protection. In such event, the parties shall discuss commercial reasonably alternative solutions in good faith. If the parties do not reach resolution within ten (10) days of Customer’s objection, and Directly does not remove the new or replacement sub-processor, Customer may suspend or terminate the Agreement. Directly imposes data protection terms on any sub-processor it appoints that require it to protect the Customer Data to the standard required by Applicable Data Protection Law. Directly remains liable for any breach of this Addendum that is caused by an act, error or omission of its sub- processor.
7. Data Subject Right Requests. Directly can provide company customers with API self-service features, where each participating customer can submit requests to delete user data. To assist in the implementation of these automated features, please refer to our API documentation here:
- If you look down the left column toward the bottom, you'll see the option to POST
- The messaging api uses oauth2 authentication, so it is actually a two step call -- one to get a Bearer token and two to make the call above.
In addition, Directly will provide reasonable additional and timely assistance (at Customer’s expense) to the extent the self-service features of the Services do not sufficiently enable Customer to comply with its obligations with respect to data subject rights under Applicable Data Protection Law. For example, if Customer needs to submit such a request while Customer implements that API, Customer can send any delete requests to Directly at email@example.com, Directly will log a request through our JIRA system for the Directly engineering team to execute the deletion request.
8. Return or Deletion of Customer Data. Following termination or expiration of the Agreement, Directly will provide a reasonable opportunity for Customer to obtain a copy of its Customer Data and delete the same. This requirement shall not apply to the extent that Directly is required by law to retain some or all of the Customer Data, or to Customer Data it has archived on backup systems, which Directly shall securely isolate and protect from any further processing except to the extent required by law.
9. Directly Audit Program. The parties acknowledge that Customer must be able to assess Directly’s compliance with its obligations under Applicable Data Protection Law, insofar as Directly is acting as a processor on behalf of Customer. For the purpose of verifying Directly’s compliance with Applicable Data Protection Law and the Agreement and upon reasonable notice of no less than thirty (30) days, Directly agrees to permit Customer, at Customer’s cost and no more than once annually, to conduct audits through a Directly approved third party auditor. However, Directly agrees to allow audits to be conducted directly by Customer where, under Applicable Data Protection Law, (a) Customer has the right to conduct audits directly; and (b) such right cannot be contractually waived by Customer. Directly agrees to cooperate in good faith with the audit and promptly (i) provide access to books, records (including, but not limited to, security scan records), and other information necessary for the audit, and (ii) at Customer’s request enable access to Directly’s premises if absolutely necessary to properly conduct the audit or required under Applicable Data Protection Law. Customer agrees to (x) schedule audits to minimize disruption to Directly’s business, (y) require any third party it employs to sign a non-disclosure agreement, and (z) make the results of the audit available to Directly. Customer will only disclose the results of the audit to third parties if such disclosure is (A) required to demonstrate Customer’s own compliance, or (B) otherwise required under applicable laws.
10. Violations of Applicable Data Protection Law. Directly will inform Customer if it becomes aware or reasonably believes that Customer’s data processing instructions violate Applicable Data Protection Law.
11. Cooperation and Data Subject Rights Regarding Customer Account Data. In the event that either party receives: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Customer Account Data; (collectively, "Correspondence") then, where such Correspondence relates (or also relates) to processing conducted by the other party, it shall promptly inform the other party and the parties shall cooperate in good faith as necessary to respond to such Correspondence and fulfil their respective obligations under Applicable Data Protection Law.
12. Transparency. The parties acknowledge that Directly does not have a direct relationship with Customer’s end users whose personal data Directly may process in connection with Customer’s use of the Services. Customer shall be responsible for ensuring its end users are provided adequate notice of Directly’s processing activities. Directly will provide Customer with sufficient information regarding its processing activities to allow Customer to provide such notice.
13.1. Security Measures. Directly has implemented and will maintain appropriate technical and organizational measures to protect Customer Account Data and Customer Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the such data (a "Security Incident"). The measures Directly takes to protect Customer Data from a Security Incident include those described at https://www.Directly.com/legal/security.
13.2 Configuration of Directly technology: Customer is responsible for properly configuring and implementing the Services and using available features and functionalities to maintain appropriate security in light of the nature of the data processed by Customer’s use of the Services.
13.3 Security Incident Notification - Customer Data: Directly shall, to the extent permitted by law, promptly notify Customer of any Security Incident of which Directly becomes aware. To the extent such Security Incident is caused by a violation of the requirements of this Addendum by Directly, Directly shall make reasonable efforts to identify and remediate the cause of such Security Incident. Directly shall provide reasonable assistance to Customer in the event that Customer is required under Applicable Data Protection Law to notify a supervisory authority or any data subjects of the Security Incident.
13.4 Security Incident Notification - Customer Account Data: If Directly becomes aware of a confirmed Security Incident involving Customer Account Data containing the personal data of data subjects with whom Directly does not have a direct relationship, for example Customer’s end users, and Directly determines that the incident must be reported to a regulatory authority, Directly will notify the Customer of the incident and of its obligation and intent to notify the regulatory authority. If the impacted data subjects are required to be notified of the Security Incident, Customer will provide reasonable assistance to Directly to effectuate appropriate notice to the impacted data subjects.
14. International Transfers of Data
14.1 General. Customer acknowledges that, as of the Effective Date of this Addendum, Directly’s primary processing facilities are in the United States. To the extent that Customer’s use of the Services requires transfer of personal data out of the European Economic Area ("EEA"), Directly will take such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures include (without limitation) transferring the Customer Account Data or Customer Data to a recipient that has executed a DPA with Standard Contractual Clauses adopted or approved by the European Commission or pursuant to Directly’s EU-US and Swiss-US Privacy Shield Framework self-certifications. The Standard Contractual Clauses as set forth in Annex 3 to this Addendum.
14.2 Privacy Shield: The Privacy Shield Framework will be the lawful transfer mechanism of Customer Account Data and Customer Data from the EEA or Switzerland to Directly in the United States, only to the extent such transfer is not covered by the SCCs annexed to this Addendum. Directly represents that it is self-certified to the Privacy Shield Framework and agrees, with respect to Customer Account Data and Customer Data that it shall comply with the Privacy Shield Principles when handling any such data.
14.3 Standard Contractual Clauses: The parties further agree that the Standard Contractual Clauses in Annex 3 to this Addendum will apply to personal data within Customer Data that is transferred from the European Economic Area and/or Switzerland to outside the European Economic area and Switzerland, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Directive) and (ii) not covered by the Privacy Shield certification pursuant to Section 14.2 (Privacy Shield) of this Addendum.
15. Entire Agreement; Conflict. This Addendum supersedes and replaces all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written, with regard to the subject matter of this Addendum, including any prior data processing addenda entered into between Directly and Customer. If there is any conflict between this Addendum and any agreement, including the Agreement, the terms of this Addendum shall control.
ANNEX 1 - DETAILS OF THE PROCESSING
Description of Data Exporter - This Annex 1 forms part of the SCCs and must be completed and signed by the parties.
Data exporter - The “data exporter” is identified in the Order Form to which this Agreement is incorporated. Data Exporter provides (please briefly specify your activities relevant to the transfer):
The data exporter is (i) the legal entity that has executed the Agreement and/or these Standard Contractual Clauses as a data exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer established within the European Economic Area (EEA) and Switzerland that have purchased SCC Services on the basis of one or more Order Form(s).
Data importer - The data importer is (please specify briefly activities relevant to the transfer):
Directly, Inc. Data importer’s services are the provision of a marketplace technology platform for customer support (“SCC Services”) which after configuration by the data exporter processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
Data subjects - The personal data transferred concern the following categories of data subjects (please specify):
- The Data Subjects are customer users of Data Exporter Customer authorized by it to use the SCC Services.
- Employees, agents, advisors, freelancers of Data Exporter (who are natural persons)
Categories of data - The personal data transferred concern the following categories of data (please specify)
Data exporter may submit Personal Data to the SCC Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, subject to the data exporter configuration of Directly’s technology, the following categories of Personal Data:
- Customer User first and last name
- Customer User email address/and/or mobile number
- Customer User request information (e.g., text of request thread)
- Customer User ID data (ID number – internal/external)
- Customer User log data (e.g., IP address, browser type, mobile network information).
- Data about question type (question category and language type)
- Customer Employee contact information (company, email, phone, physical business address)
Special categories of data (if appropriate) - The Personal Data transferred concern the following special categories of data (please specify):
None as of the Effective Date.
Processing operations - The Personal Data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the SCC Services pursuant to the Agreement. Specific processing operations are described in Section 2 of the Addendum to which these Clauses are attached. ANNEX 2 - TO MSA & THE STANDARD CONTRACTUAL CLAUSES
ANNEX 2 - TO MSA & THE STANDARD CONTRACTUAL CLAUSES
This Annex 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(c) and 5(c) (or document/legislation attached):
See Section 13 of the Addendum to which these Clauses are attached.
ANNEX 3 (To the Directly MSA); Model Clauses; Standard Contractual Clauses
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 that do not ensure an adequate level of data protection.
Name and information of the data exporting organisation can be found in the applicable Order Form incorporated into the Agreement to which these Clauses are attached.
(the data exporter)
Name of the data importing organization:
Address: 333 Bryant Street, San Francisco, CA 94107
Other information needed to identify the organization: ………………………………………………………………..
(the data exporter)
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 Annex 1.
Clause 1 Definitions For the purposes of the Clauses:
- ‘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;
- ‘the data exporter’ means the controller who transfers the Personal Data;
- ‘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;
- ‘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;
- ‘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;
- ‘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.
Clause 2 Details of the transfer The details of the transfer and in particular the special categories of Personal Data where applicable are specified in Appendix 1, which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
- 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;
- 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;
- the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- it will ensure compliance with the security measures;
- 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;
- it will 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;
- it will 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;
- 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
- it will ensure compliance with Clause 4(a) to (i).
Clause 5 Obligations of the data exporter The data exporter agrees and warrants that:
- It will 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;
- 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;
- It has implemented the technical and organizational security measures specified in Appendix 2 before processing the Personal Data transferred;
- 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 unauthorized access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
- It will deal promptly and properly with all inquiries from the data exporter relating to its processing of the Personal Data subject to the transfer and abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- At the request of the data exporter, it will 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;
- It will 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;
- In the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- The processing services by the subprocessor will be carried out in accordance with Clause 11;
- It will 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, namely the United States.
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 Clauses.
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, namely the United States.
- 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.