This Data Protection Addendum (“Addendum”) forms part of the Visual Lease Subscription Agreement (the “Agreement”) between: (i) Visual Lease, LLC (“Vendor”); and end-users of the Visual Lease system (“You” or “Company”) acting on its own behalf and as agent for each Company Affiliate.

In consideration of the mutual obligations hereto, the parties agree that the terms of this Addendum will be added to the Agreement.  Unless the context requires otherwise, references to the Agreement also include the Agreement, the Addendum, the Standard Contractual Clauses, and any exhibits, statements of work, and amendments hereto.

 

1.  Definitions

1.1  Capitalized terms herein have the meanings set forth in this Addendum, including those set forth below; terms not otherwise defined in this Addendum, have the meaning given in the Agreement.

1.1.1           “Applicable Laws” means any applicable law with respect to the Company Personal Data;

1.1.2           “Controller” means an entity that determines, alone or jointly with others, the purposes and means of the Processing of Personal Data;

1.1.3           “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller;

1.1.4           “Contracted Processor” means Vendor or a Subprocessor;

1.1.5            “Data Subject” means an identified or identifiable natural person located in the EEA;

1.1.6           “EEA” means the European Economic Area;

1.1.7            “GDPR” means EU General Data Protection Regulation 2016/679 and any Member State implementation legislation relating thereto;

1.1.8           “Member State” will have the same meaning as in the GDPR;

1.1.9           “Personal Data” means any information (whether true or not) relating to an identified or identifiable Data Subject; a Data Subject is identifiable if the Data Subject can be identified, directly or indirectly (including in combination with other information);

1.1.10        “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data transmitted, stored or otherwise Processed;

1.1.11        “Process” or “Processing” means any operation or set of operations that is performed upon Company Personal Data, whether or not by automatic means, such as access, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, return or destruction;

1.1.12        “Restricted Transfer” means:

1.1.12.1               a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or

1.1.12.2               an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor,

in each case, where such transfer would be prohibited by GDPR, or applicable contractual terms put in place (e.g., between Company and a third-party Controller) to address the data transfer restrictions of GDPR, in the absence of the Standard Contractual Clauses to be established under this Addendum;

1.1.13        “Services” means the services and other activities to be supplied to or carried out by or on behalf of Vendor for Company Group Members pursuant to the Agreement;

1.1.14        “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.1.15        “Company Group Member” means Company or any Company Affiliate;

1.1.16        “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Company Group Member (including where such Company Group Member is acting as a Processor for a third party Controller) pursuant to or in connection with the Agreement;

1.1.17        “Standard Contractual Clauses” means the contractual clauses set out in Annex 2;

1.1.18        “Subprocessor” means any person (including any third party, but excluding an employee of Vendor) appointed by or on behalf of Vendor to Process Company Personal Data in connection with the Agreement, including any other subprocessor of the Vendor who agrees to receive from the Vendor or from any other subprocessor of Vendor Personal Data exclusively intended for the Processing activities to be carried out on behalf of the Company after the transfer in accordance with its instructions, the terms of this Addendum, and the terms of the written subcontract;

1.1.19        “Supervisory Authority” shall mean the competent EEA data protection authority.

2.                   Processing of Company Personal Data

2.1                Vendor will, and will ensure that each Subprocessor will:

2.1.1           comply with GDPR when Processing Company Personal Data; and

2.1.2           not Process Company Personal Data other than on Company’ documented instructions or per the Agreement unless Processing is required by Applicable Laws, in which case Vendor will to the extent permitted by Applicable Laws inform Company of that legal requirement before the relevant Processing of that Personal Data.

2.2                Company (for each Company Group Entity) instructs Vendor (and authorises Vendor to instruct each Subprocessor duly engaged under this Addendum) to, as reasonably necessary for the provision of the Services and consistent with the Agreement, (i) Process Company Personal Data; and (ii) in particular, transfer Company Personal Data to the United States or any other country where Vendor will process Company Personal Data pursuant to this Addendum..

2.3                Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Company Personal Data as required by Article 28(3) of the GDPR.  Vendor may make reasonable amendments to Annex 1 from time to time as Vendor reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.

3.                   Vendor Personnel

Vendor will take reasonable steps to ensure the reliability of any employee, agent, or contractor of Vendor and any Subprocessor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know/access the relevant Company Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4.                   Security

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity to the rights and freedoms of natural persons, including from a Personal Data Breach, Vendor will (and will require each Subprocessor to) in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

5.                   Subprocessing

5.1                Each Company Group Member authorises Vendor to appoint Subprocessors in accordance with this Section and any restrictions in the Agreement.

5.2                Vendor may continue to use those Subprocessors already engaged by Vendor as of the date of this Addendum, subject to Vendor in each case as soon as practicable meeting the obligations set out in this Addendum.

5.3                With respect to each Subprocessor, Vendor will:

5.3.1           ensure that the arrangement between Vendor and the relevant Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meets the requirements of Article 28(3) of the GDPR.

6.                   Data Subject Rights

6.1                Taking into account the nature of the Processing, Vendor will assist each Company Group Member by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Company Group Members’ obligations to respond to requests to exercise Data Subject rights under GDPR.

6.2                Vendor will:

6.2.1           promptly notify Company if any Contracted Processor receives a request from a Data Subject under GDPR in respect of Company Personal Data; and

6.2.2           ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Vendor will, to the extent permitted by Applicable Laws, inform Company of that legal requirement before the Contracted Processor responds to the request.

7.                   Personal Data Breach

7.1                Vendor will notify Company without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data. Vendor shall further assist Customer in fulfilling its personal data breach notification obligations under GDPR, taking into account the nature of the processing and the information available to Vendor.

7.2                Vendor will co-operate with Company and take such reasonable commercial steps as are directed by Company, at Company’s cost, to assist in the investigation, mitigation, and remediation of each such Personal Data Breach,

8.                   Data Protection Impact Assessment, and Prior Consultation

Vendor will (and will require that each Subprocessor will) provide reasonable assistance, at Company’s cost, to each Company Group Member with any data protection impact assessments, and prior consultations with Supervisory Authorities, which Company reasonably considers to be required of any Company Group Member by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9.                   Deletion or Return of Company Personal Data

9.1                Upon request by Company, Vendor will (and will procure Contracted Processors to) return or, upon request, delete all Company Personal Data within a reasonable time after receiving such request. In any event, Contracted Processors shall delete all Company Personal Data within sixty (60) days of the date of cessation of the Services.

9.2                Each Contracted Processor may retain Company Personal Data to the extent and for such period as required by Applicable Laws, provided that the provisions of this Addendum will continue to apply for so long as the Company’s Personal Data is Processed by Contracted Processor.

10.                Audit Rights

10.1             Vendor will make available to Company on request all information reasonably necessary to demonstrate compliance with this Addendum, and, at Company’s expense, will allow for and contribute to audits, including inspections, by Company or an auditor mandated by Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

10.2             Company will give Vendor at least thirty (30) days notice of any audit or inspection to be conducted under this Section. Except as otherwise required by Applicable Laws or a relevant Supervisory Authority, any audit or inspection will be conducted within normal business hours and no more than once in any calendar year.

11.                Restricted Transfers

11.1             Company for itself and each Company Group Member (each a “data exporter”) and Vendor, as appropriate, (as “data importer”), hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer.

11.2             The Standard Contractual Clauses will come into effect on the later of:

11.2.1        the data exporter becoming a party to them;

11.2.2        the data importer becoming a party to them; and

11.2.3        commencement of the relevant Restricted Transfer.

11.3             Section 12.1 will not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of GDPR.

12.                Company Representation

Company and each Company Group Member represents and warrants that Company Personal Data has been lawfully collected by Company (or Company Group Member, as the case may be) and transferred to Vendor in accordance with Company (or Company Group Member, as the case may be)’s obligations under Applicable Laws such as, but not limited to, obtaining necessary consents and authorizations from, and giving appropriate notice to, data subjects, so that Vendor can carry out its Services as a Processor.

13.                General Terms

13.1             Order of precedence.  Nothing in this Addendum reduces Vendor or any Subprocessor’s obligations under the Agreement in relation to the protection of Personal Data or permits Vendor or any Subprocessor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail. In the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement, the provisions of the Agreement will prevail.

13.2             Changes in Data Protection Laws, etc.  If any variation is required to this Addendum as a result of a change in GDPR or any variation is required to the Standard Contractual Clauses, then the parties agree to make any necessary variations to this Addendum and/or the Standard Contractual Clauses, as applicable, to address such changes.

This Addendum is entered into and becomes a binding part of the Agreement with effect from the date of latest execution of the Agreement.

 

 

ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Company Personal Data

The subject matter and duration of the Processing of the Company Personal Data are set out in the Agreement and this Addendum and may include the storage of business emails and contract information related to Company’s real estate leases or other commercial contracts.

The nature and purpose of the Processing of Company Personal Data

As set forth in the Agreement, namely the storage of such potential Company Personal Data in the performance of the processing services.

The types of Company Personal Data to be Processed

This is determined at the Company or Company’s end user’s discretion but could include business emails, phone numbers and the like inputted by Company or Company’s end user related to its commercial agreements.

The categories of Data Subject to whom the Company Personal Data relates

This is determined at the Company or Company’s end user’s discretion but could include business emails, phone numbers and the like inputted by a Company or Company’s end user related to its commercial agreements.

The obligations and rights of Company and Company Affiliates

The obligations and rights of Company and Company Affiliates are set out in the Agreement and this Addendum.

 

ANNEX 2: STANDARD CONTRACTUAL CLAUSES

These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws.

If these Clauses are not governed by the law of a Member State, Contracted Processor will comply with terms of the Standard Contractual Clauses applicable to the data importer.

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.

Visual Lease, LLC (the “data importer”) and end-users of the Visual Lease system (“You” or the “data exporter”) 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, above.  If you are acting on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this agreement, in which case the terms “you,” “your” or “data exporter” shall refer to such entity and its affiliates.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

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’ will 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; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]

(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; [If these Clauses are not governed by the law of a Member State, the words “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” are deleted.]

(d)           ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex 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 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 will 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 organisational security measures specified in Appendix 2 to this contract;

(d)           that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e)           that it will ensure compliance with the security measures;

(f)            that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(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).

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 organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d)           that it will promptly notify the data exporter about:

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

(ii)           any accidental or unauthorised access, and

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

(e)           to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f)            at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which will 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 will 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.

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 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.

  1. 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 will 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.

  1. 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 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 will 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 will be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing law

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

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses.  This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

  1. The data importer will 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 will 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 will 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 will 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 will 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 will be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter will keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which will be updated at least once a year. The list will 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 subprocessor will, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or will 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.

 

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

  • All Endpoints are protected by Anti-Virus/Intrusion protection software.
  • The data importer leverages Gateway AV/Intrusion Protection technology provided by a third party provider.
  • All firewall logs are back hauled to a central log/report repository.
  • The data importer monitors the network 24/7 for any security anomalies.
  • The data importer centrally manages Microsoft and third-party software patches.
  • All changes that occur on the network have a formal change management policy in place and are recorded.
  • All inbound/outbound Internet traffic is allowed on a need-to-have basis.
  • DNS traffic is only allowed to leverage secure OPEN DNS infrastructure.