Textgrid Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of the Textgrid Agreement, Order Form, or Terms of Use available at https://textgrid.com/terms/ or other electronic agreement or mutually executed written agreement between Textgrid and Customer applicable to Customer’s use of Textgrid Service (the “Agreement”) and reflects the Parties’ agreement with regard to the Processing of Customer Personal Data. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, the Parties hereby agree as follows:

I. Introduction

In the course of providing the Textgrid Service to Customer pursuant to the Agreement, Textgrid may Process Customer Personal Data on behalf of Customer and the Parties agree to comply with the following provisions and instructions with respect to any Customer Personal Data. By signing this DPA, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Legislation, in the name and on behalf of its Data Controller Affiliates, if and to the extent Textgrid Processes Customer Personal Data for which such Data Controller Affiliates qualify as the Controller. For the purposes of this DPA only, and except where otherwise indicated herein, the term “Customer” shall include Customer and Data Controller Affiliates. Subject to the terms set forth below, this DPA will be effective and replace any previously applicable data processing and security terms related to Processing as of the DPA Effective Date.

II. Parties to the DPA

If the Customer entity signing this DPA is a party to the Agreement, this DPA will be an addendum to and forms part of the Agreement. If, however, the Customer entity signing this DPA is neither a party to the Agreement or an Order, this DPA is not valid and is not legally binding. The Textgrid entity that is the party to the Agreement and applicable Order is the Textgrid entity to this DPA and is set forth in the signature block below.

III. Definitions

Definitions for capitalized terms used in this DPA shall apply to this DPA only and have the meaning ascribed to such terms in this section, regardless of whether the Agreement is governed by different definitions for the same terms. Capitalized terms not defined herein shall have the meaning set forth in the Agreement.

“Adequacy” means where the European Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organization in question, ensures an adequate level of protection.

“Affiliate” means, unless otherwise defined in the Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Textgrid” means Textgrid, LLC that is the named party to the Customer’s Order.

“Textgrid Service” means the cloud-based communication platform and related services provided by Textgrid (including the Textgrid Cloud) and subscribed to under an Order or Agreement.

“Controller” means the entity that determines the purposes and means of Processing of Customer Personal Data.

“Customer Personal Data” means Content (as defined in the Agreement) which contains Personal Data.

“Data Controller Affiliates” means any of Customer’s Affiliates that have not signed their own Order with Textgrid and therefore would not be a “customer” as defined under the Agreement but is an entity which is: (i) subject to Data Protection Legislation; and (ii) permitted to use the Textgrid Service pursuant to the Agreement between Customer and Textgrid.

“Data Protection Legislation” means the laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, as applicable to the Processing of Customer Personal Data under this DPA.

“Data Subject” means the identified or identifiable person to whom Customer Personal Data relates.

“DPA Effective Date” means the date of Customer’s signature date below.

“GDPR” means General Data Protection Regulation and is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data and repealing of Directive 95/46/EC.

“Order” means the separately executed document(s) under which Customer subscribes to the Textgrid Service, products or services pursuant to the Agreement and has been agreed to in writing by the Parties or as agreed to between Customer and Textgrid.

“Personal Data” means data relating to: (i) an identified or identifiable natural person; and (ii) an identified or identifiable legal entity that has standing under the applicable Data Protection Legislation.

“Processor” means the entity which is Processing Customer Personal Data on behalf of the Controller.

“Processing” means any operation or set of operations which is performed upon Customer Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or
destruction.

“Subprocessor” means any Processor engaged by Textgrid.

“Users” means, collectively, the any users of the Customer including but not limited to any administrator, managed user or external user.

IV. Processing of Customer Personal Data

A. Roles and Responsibilities. The Parties acknowledge and agree that with regard to the Processing of Customer Personal Data under the Data Protection Legislation and this DPA, Customer is the Controller and Textgrid is the Processor. Each Party will comply with the obligations applicable to it under the Data Protection Legislation with respect to the Processing of Customer Personal Data.

B. Customer’s Instructions and Authorization to Process Customer Personal Data. By entering into this DPA, Customer instructs Textgrid, subject to Customer’s compliance with Data Protection Legislation, to Process Customer Personal Data: (a) to provide the Textgrid Service (in accordance with the features and functionality of the Textgrid Service); (b) to enable User initiated actions on the Textgrid Service; (c) as set forth in the Agreement or applicable Order; and (d) as further documented by a mutually agreed upon written instruction given by Customer and accepted by Textgrid, unless required to do so otherwise by law to which Textgrid is subject; in such a case, Textgrid shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. Customer is solely responsible for the accuracy and legality of Customer Personal Data provided to Textgrid. If Customer is processing personal data of a child, Customer acknowledges it has made reasonable efforts to verify that consent has been given or authorised by the holder of parental responsibility over the child. Customer further acknowledges that Textgrid is not responsible for collecting consent or authorization for the processing of child’s data.

C. Scope of Processing. Textgrid will Process Customer Personal Data as necessary to perform the Textgrid Service pursuant to the Agreement and in accordance with this DPA. Textgrid will Process Customer Personal Data for the period of the Agreement or applicable Order, unless otherwise agreed to by the Parties in writing. The types of Customer Personal Data and categories of Data Subjects that may Processed under this DPA are set forth in Annex 1 (“Processing Scope”).

D. Data Protection Impact Assessment and Prior Consultation Assistance. Textgrid will provide reasonable assistance to Customer, as required by law and applicable to Textgrid’s role as a Processor, for Customer to comply with Customer’s obligations to perform a data protection impact assessment. Further, in such situations where Customer’s processing of Customer Personal Data results in a high risk to the rights and freedoms of natural persons, Textgrid will provide reasonable assistance to Customer as it seeks prior consultation from a supervisory authority.

V. Data Security

A. Security Controls. Textgrid will implement and maintain appropriate technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access as described in Appendix 2 (the “Security Controls”) to the Standard Contractual Clauses. As described in Appendix 2, the Security Controls include measures to encrypt Customer Personal Data; to help ensure ongoing confidentiality, integrity, availability and resilience of Textgrid’s systems and services; to help restore timely access to Customer Personal Data following an incident; and for regular testing of effectiveness.

B. Security Compliance of Textgrid Personnel. Textgrid will take appropriate steps to ensure compliance with the Security Controls by its employees, contractors and Subprocessor to the extent applicable to their scope of performance, including ensuring that all persons authorised to process Customer Personal Data have agreed to an appropriate obligation of confidentiality.

VI. Data Incident Notification

After becoming aware of an accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to Customer Personal Data transmitted, stored or otherwise Processed by Textgrid or its Subprocessors (“Data Incident”), Textgrid will notify Customer without undue delay (“Data Incident Notification”). Textgrid will take reasonable steps to: (i) identify the cause of such Data Incident; and (ii) take the steps necessary and reasonable to remediate the cause of such Data Incident to the extent such remediation is within Textgrid’s reasonable control. Data Incident Notification will be delivered to the Administrator(s) of Customer’s Textgrid Service account (“Notification Email Address”). Customer is solely responsible for ensuring that the Notification Email Address associated with Customer’s account is current and valid.

VIII. Deletion and Return of Customer Data

The Textgrid Service provides Customer with controls to enable Customer to retrieve, rectify, delete or block Customer Personal Data as described in the Agreement. For purposes of this provision, Textgrid will provide reasonable assistance to Customer where necessary to  ssist with such obligations.

VII. Subprocessors

A. Consent to Subprocessors. Customer hereby explicitly consents to the use of Subprocessors by Textgrid in order to allow Textgrid to fulfil its contractual obligations under the Agreement and this DPA and to provide certain services on Textgrid’s behalf such as support services. For clarification, Subprocessors are third party Subprocessors that may be engaged by Textgrid.

B. Subprocessor Commitments. Textgrid undertakes to enter into a written agreement with any applicable Subprocessors in accordance with such obligations that will in no event be less protective than this DPA. Textgrid will restrict the Sub processor’s access to only what is necessary to maintain the Textgrid Service or to provide the Textgrid Service to Customer and any of its Users. Customer hereby consents to Textgrid’s use of Subprocessors as described in this Section IX (Subprocessors) and those listed on the Textgrid Subprocessor website list referred to below. Textgrid will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessors.

C. Current Subprocessors. Information regarding current Subprocessors can be found on the Textgrid Subprocessor website found here: Textgrid.com/subprocessors. This Subprocessor list may be updated from time to time by Textgrid in accordance with this Section IX (Subprocessors).

D. Changes to Subprocessors. Textgrid will provide Customer with notice at least 30 days in advance before a new Subprocessor Processes any Customer Personal Data. Such notice may be provided either by sending an email to the Notification Email Address or via the Textgrid Subprocessor page on Textgrid’s website. Customer may object to any new Subprocessor by terminating the applicable Order(s) with respect only to those services which cannot be provided by Textgrid without the use of the objected-to new Subprocessor. Such termination will be made by providing written notice to Textgrid, on the condition that Customer provides such notice within 20 days of being informed of the engagement of the new Subprocessor as described herein. This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Subprocessor.

VIII. Data Subject Rights

A. Access and Rectification. Textgrid will, in a manner consistent with the functionality of the Textgrid Service, enable Customer to access, rectify and restrict processing of Customer Personal Data, including via the deletion functionality provided by the Textgrid Service.

B. Data Subject Requests. If Textgrid receives a request from a Data Subject in relation to Customer Personal Data, to the extent legally permissible, Textgrid will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Textgrid Service. To the extent Customer, in its use of the Textgrid Service, does not have the ability to address a Data Subject request, Textgrid shall upon Customer’s request provide commercially reasonable assistance to facilitate such Data Subject request to the extent that Textgrid is legally permitted to do so and provided that such Data Subject request is exercised in accordance with the Data Protection Legislation. To the extent legally permitted, Customer shall be responsible for any costs arising from Textgrid’s provision of such assistance.

IX. Data Controller Affiliates

A. Relationship and Communication. By signing this DPA, Customer acknowledges and agrees that it is entering into this DPA on behalf of itself and, as applicable in accordance with Section I (Introduction), in the name and on behalf of its Data Controller Affiliates, thereby establishing a DPA between Textgrid and each Data Controller Affiliate, subject to the provisions of the Agreement and this DPA. Each Data Controller Affiliate agrees to be bound by the obligations of this DPA. However, a Data Controller Affiliate is not and does not become a party to the Agreement and is only a party to this DPA. All access and use of the Textgrid Service by Data Controller Affiliate must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by a Data Controller Affiliate shall be deemed a violation by Customer. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communications with Textgrid under this DPA and shall be entitled to make and received any communication in relation to this DPA on behalf of its Data Controller Affiliate.

B. Rights of Data Controller Affiliates. In the event a Data Controller Affiliate becomes a party to the DPA with Textgrid, it shall do so only to the extent required under applicable Data Protection Legislation. Except as expressly required by Data Protection Legislation for a Data Controller Affiliate to exercise a right or seek a remedy under this DPA from Textgrid by itself directly, the Parties agree that: (i) the Customer that is the contracting party to the Agreement shall have the sole right to exercise any such right or seek any such remedy on behalf of the Data Controller Affiliate and (ii) the Customer that is the contracting party to the Agreement shall, to the extent not
prohibited by Data Protection Legislation, exercise any such rights under this DPA in a combined manner for all of its Data Controller Affiliates together.

X. Limitation of Liability

Each Party’s and of its Affiliate’s liability taken together in the aggregate, arising out of or related to this DPA whether in contract, tort, or under any other theory of liability, is subject to the limitation of liability provisions of the Agreement. Any reference in such limitation of liability provisions to the liability of a Party means the aggregate liability of that Party and all of its Affiliates (including Data Controller Affiliates) under the Agreement and all DPAs taken together. For the avoidance of doubt, Textgrid and its Affiliates’ total liability for all claims from the Customer and all of its Data Controller Affiliates arising or related the Agreement or any DPA shall apply in aggregate for all claims under both the Agreement and all DPAs and shall not be understood to apply individually and severally to Customer or to any Data Controller Affiliate that is a contractual party to any such DPA.

XI. GDPR and Data Transfers

A. GDPR. Textgrid will Process Customer Personal Data in accordance with the GDPR requirements applicable to Textgrid’s provision of the Textgrid Service.

B. Transfer mechanisms for data transfers. Subject to the terms and conditions of the Agreement and Data Protection Legislation, Textgrid makes available the transfer mechanisms listed below. Such transfer mechanisms shall apply to the Textgrid Service in the order of precedence set forth herein with respect to any transfer of Customer Personal Data under this DPA from the European Union, the European Economic Area (including its member states), Switzerland and the United Kingdom to countries which are not deemed to have Adequacy (to the extent that such transfers are subject to such Data Protection Legislation): (i) the Standard Contractual Clauses set forth in Annex 2 to this DPA, subject to the additional terms set forth in Section XIII(D) (GDPR and Data Transfers)).

C. Additional Terms applicable to the Standard Contractual Clauses.

(1) Instructions. The Standard Contractual Clauses set forth in Annex 2 and the terms set forth in this Section C shall apply to the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Data Controller Affiliates. For the purposes of Standard Contractual Clauses, Customer shall be the data exporter and Textgrid shall be deemed the data importer. This DPA and the Agreement are Customer’s instructions to Textgrid for the Processing of Customer Personal Data. Any additional or alternate instructions must be agreed upon separately in writing. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Customer Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by Users in their use of the Textgrid Service and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement and have been agreed to by Textgrid in writing.

(2) Consent to Use Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that Textgrid and its affiliates may engage third- party Sub-processors in connection with the provision of the Textgrid Service in accordance with Section IX(A) of this DPA and available on the Sub-processors page on Textgrid’s website.

The Parties authorized signatories have duly executed this Agreement.

Annex 1
Processing Scope

Details of the Data Processing
Textgrid will process information to provide the Services pursuant to the Agreement. Textgrid will process information sent by Customer’s end users identified through Customer’s implementation of the Services.

Types of Personal Data (may include)

• Customer Account Data
o Personal data that relates to customer’s relationship with Textgrid, including contact names, individual names authorized by customer for account access and billing information, username, password, email address, IP address, Location, Country, Credit card information.

• Customer Usage Data
o Interactions with end users via the communication platform, including phone number, date, time, duration and type of communication.

Additional detail regarding what information Customer may send to Textgrid can be found in the terms of the Agreement.

Categories of Data Subjects
Customer and end-users of the Customer’s web and mobile applications.

Processing Activities
The provision of Services by Textgrid to Customer. Such activities include:

• Personal data will be transferred from the Customer to Textgrid for Textgrid to provide a
communication platform to facilitate interaction between the Customer and Customer’s end
user.
• The Services will consist of providing a communication platform for the Customer to use in
order to onboard, analyse and retain end-users and their use of Customer’s services.
• Full details about the Textgrid Services can be found at Textgrid.com/terms/

Annex 2 – STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. The data exporter and the data importer identified above, each a ‘party’; together the ‘parties’, have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions
For the purposes of the clauses:

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

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 sub-processor’ 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 sub-processor 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, 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

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 sub-processor 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 sub processor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:

a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

c) that the data importer will provide sufficient guarantees in respect of the technical and 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

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

Clause 5
Obligations of the data importer
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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;

i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor 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 sub-processor 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.

3. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

4. 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

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

b. to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive
or procedural rights to seek remedies in accordance with other provisions of national or
international law.

Clause 8
Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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
Sub-processing

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.

2. The prior written contract between the data importer and the sub-processor 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 thirdparty liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for sub-processing 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.,

4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory  authority.

Clause 12
Obligation after the termination of personal data-processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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.

Appendix 1 to the Standard Contractual Clauses

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

Data exporter
The data exporter is Customer (as defined in the DPA), its Affiliates and/or their respective customers.

Data importer
The data importer is providing services and support or fulfilling contractual obligations towards data exporter as described in the individual contracts or a purchase orders for the services subject to this Data Transfer Agreement. These services may include the processing of personal data by data importer or the provisioning of maintenance and support services by data importer on systems which may contain personal data.

Data subjects
Data subjects are specified in the contracts or purchase orders for the services subject to this Data Transfer Agreement.

Categories of data
Personal Data is specified in the contracts or purchase orders for the services subject to this Data Transfer Agreement.

Special categories of data (if appropriate)
No transfer of special categories is anticipated.

Processing operations
The personal data transferred will be subject to the processing activities described in the contracts or purchase orders for the services  subject to this Data Transfer Agreement.

Appendix 2 to the Standard Contractual Clauses

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

Description of the technical and organizational security measures implemented by the data importer

Data importer has implemented stringent data privacy structures within the company. These structures ensure adequate data privacy with the measures implemented by data importer:

• Organization
• Entry
• Admission
• Access
• Transmission of data
• Input of data
• Commissioned data processing
• Data availability
• Data separation

The specific details regarding the technical and organizational measures are explained in the following text.

A. Organizational Control

Measures, which comply with the specific requests of Data Protection, regarding the internal organization:

• Installment of an external Data Protection Officer with expertise
• Commitment of employees to data secrecy
• IT-Emergency concept
• Data back-up concept (for production data)
• Regulations regarding the correct and secure processing of duties done by data processing
• Regular instruction of relevant regulations
• Control of compliance with the regulations
• Regulations and instructions for entry control
• Regulations and instructions for admission control
• Regulations and instructions for access control
• Regular information and instruction of the employees
• Documentation of IT-procedures, software, IT-configuration

B. Entry Control

Measures to limit entrance of unauthorized persons to areas where personal data is used or processed with electronic data processing  devices.

• Entry control
• Regulations and instructions of entry control
• Gate control
• Identification badges / code cards
• Entry regulations organization for employees
• Entry regulations for external service providers (cleaning and maintenance personal,
craftsmen, customers, visitors
• Classification of security areas
• Identification of admission authorized persons
• Safeguarding by alarm system, intrusion detector, police emergency call
• Security locks with centralized key administration and master key plan
• Revision secure organization of admission rights
• Revision secure grant and revocation of admission rights

C. Access Control (Electronic data processing)

Measures to limit access of unauthorized persons to systems where personal data is used or processed with electronic data processing devices.

• Regulations and instructions for access control
• Processes for file organization
• Rights- and role-concept
• Assignment of rights for data-input as well as for information, modification and deletion of
stored data
• Regulated procedure for granting, changing and revocation of access rights
• Selective access regulations for procedures, operation control tickets
• User adaptive access protection
• Selective access for files and functions
• Automatic screensaver protection in case of inactivity
• Requirement of user identifiers (Passwords) for files, system data, application data
• Machine control of authorizations
• Logging access to specific data (e.g.: Console log, machine Log)
• Functional and/or timely limited use of terminals
• Password policy at the level of configuration of IT-systems
• Identification and authentication of users
• Control of administrator activities
• Limitation of free style queries in databases
• Specific written directives for the restart-procedure
• Safeguards for access by self-acting institutions
• Use of encryption

D. Access Control (Data media)

Measures to limit access of unauthorized persons to data and/or applications being stored on storage devices outside of an electronic data processing system.

• Write-protection for data media
• Identification of authorized personnel
• Rules regarding the production of copies
• Labelling obligation for data media with classification
• Guidelines for the organization of data storage
• Data privacy conform elimination of out of use data media with protocol
• Controlled storage of in use and swapped out data media in a secure area (Archive, secure
cabinets)

E. Transmission Control

Measures to ensure that personal data cannot be read, copied, modified or removed without authorization during electronic transmission or transport.

Measures to ensure and that it is possible to check and establish to which bodies the transfer of personal data by means of data transmission facilities is envisaged.

Measures to ensure, that an automated procedure for the retrieval of personal data is running a log
procedure in order to have retrospect information which data has been retrieved by whom.

• Determination of authorized person for transmission and transport
• Documentation of the retrieval and transmission programs
• Determination and documentation of the transmission procedure and the data receivers
• Regulations and instructions for data media transport and transmission control
• Secured data lines

F. Input Control

Measures to ensure that it is possible to check and establish whether and by whom personal data / social data have been entered, modified or removed into/from data processing systems.

• Automatic protocol of input, modification and deletion of personal data
• Protocol of system generation and modification of system parameters
• Definition of deletion and retention periods for the protocols

G. Job Control

Measures to ensure that, in the case of commissioned processing of personal data, the data are processed strictly in accordance with the instructions of the principal.
The following measures are relevant in case of sub-order for the subcontractor as well.

• Careful selection of the contractor (processor)
• Written agreement with definition of the decisional authority based on statutory mandatory
law
• Outline of the rights and duties of principal and contractor in regard to:
• Data security measures
• Transmission directives
• Retention and deletion periods
• Breach of contract
• Insurance
• Definition of safety measures
• Right of access to subcontractor premises
• Control of security measures at the subcontractor
• Control of the correct execution of the contract
• Sanctions in case of contract violations

H. Availability Control

Measures to ensure that personal data is protected from accidental destruction or loss (e.g.: loss of power, lightning, protection from water damage)

• Ordinance of work instructions and safety directives
• Fire preventions
• Definition and control of fire precautions and fire/water early warning system
• Risk- and weak-point-analysis for relevant IT-division
• Regular and intense instruction of all employees
• Disaster recovery plan, emergency handbook, security-infrastructure
• Recovery-Procedures for production data
• Data mirroring
• Regular stringent data back up
• Formalized approval process for new IT-applications and in case of relevant changes of
running applications
• Used software is checked and released in a formalized procedure
• Centralized procurement for hard- and software
• Database-Logging

I. Separation Control

Measures to ensure that data collected for different purposes can be processed separately.

• Stringent company internal directives for data collection, data processing and use of data
• Grant of specific access rights
• Use of separate user roles to ensure separation control
• Documentation of data bases
• Documentation of application programs
• Documentation of the specific purposes of the collection, processing and use of data
• Logical separation of data