For the purpose of this Policy the following terms have the following meanings:
- “Personal Data” means any type of data that can be used to directly or indirectly identify an individual in opposition to an entity, or the definition given by the European Data Protection Legislation, or if not defined therein, in the General Data Protection Regulation (“GDPR”), as applicable.
- “Customer Data” means the Personal Data uploaded to the Zinier app by the Customer or End User.
- “data subject” for the purposes of this Policy, refers to any individual who can be identified, directly or indirectly, via his/her Personal Data such as: name, contact information such as phone number, address, e-mail, date of birth, title, company name, etc., and through sensitive information such as: IP address, ID number, location and/or geolocation data. In other words, a data subject is an end user whose personal data can be collected for the proper provision of the services offered by Zinier, or the definition given by the European Data Protection Legislation, or if not defined therein, in the General Data Protection Regulation (“GDPR”), as applicable, and in the event of contradiction the definition established in the aforementioned regulations shall superseded the intended definitions included in this section.
- “Process” and “processing” mean any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, or the definition given by the European Data Protection Legislation, or if not defined therein, in the General Data Protection Regulation (“GDPR”), as applicable, and in the event of contradiction the definition established in the aforementioned regulations shall superseded the intended definitions included in this section.
- “Party” or “Customer” refer to any individual or entity engaged in a commercial and/or business relationship with Zinier by which they have acquired or purchased the Zinier Services (as described below) and licenses to use the Zinier App (as defined below).
- “Customer Agreement” means the contract executed between Zinier and a Party or Customer for the provision of Zinier’s products and/or Services through the Zinier app.
- “End User” means the individual or natural person, also identified as the data subject, authorized by the Party, or Customer to access and use the Zinier app, and who receives benefits from using the Zinier app as enlisted within the contents of this document.
- “Zinier app” or “Zinier application” refers to the software developed by Zinier to allow users to complete field tasks from their Android device. Using a simple mobile interface, field workers can view and complete tasks quickly and painlessly and deliver exceptional real-time results from the field.
In case the Party hires and / or subcontracts any third party for the performance of its obligations under any Customer Agreement, the Party shall implement and be certain that such third party has in place and follows the minimum and necessary Data Protection policies and procedures required by law.
1. Purposes for which Personal Data is Collected/Processed
Zinier may collect only Customer Data to provide the Services, and sensitive information, in specific the location and/or geolocation data of a data subject, only with the explicit permission of the data subject and under the instructions of the Customer, for the purposes of the proper function of the Zinier app since without the location and/or geolocation data of the data subject’s device the Zinier app will be rendered unusable; however, Zinier’s use and access to the aforementioned Customer Data and sensitive information are limited merely to the provision of the Services and Field Services (as defined below), and always according to the Customer Agreement, as such Personal Data and sensitive information are considered as Customer Data.
For the avoidance of doubt, the main purposes of the Zinier app that require the collection of Customer Data and specifically the sensitive information limited to the location and/or geolocation data, hence the uses given by Zinier to such information, are: to assist the data subject in the field to perform his/her tasks efficiently, to support the data subject in the field service by knowing his/her location; to provide an estimated ETA for the data subject to get to a particular site to perform his/her duties, track the progress of the tasks the data subject is performing; to identify the proximity of the data subject to the customer’s location; to allow the data subject to do check in; to start travel and update address scenarios; to view notifications for dispatched tasks; and to notify the data subject’s dispatcher about the data subject’s real location while on duty in order to provide the data subject any support he/she may require (the “Field Services”), and always under the instructions and acceptance of the Customer.
If the data subject has the ‘background location’ turned on, the Zinier app will, from time to time, tell us about the data subject device’s location even if the data subject is not directly interacting with the application. This is required for the Zinier app to work properly, otherwise the Zinier app will be broken or rendered unusable and to provide beneficial features to the data subject such as notifications, support the data subject may be requiring on the field, and an estimated ETA for the data subject to get to a particular site to perform his/her duties.
Other purposes for which Zinier may collect and process Personal Data without including location and/or geolocation data, nor any type of sensitive information of Personal Data are:
- Communicating with Customers regarding products, services and projects owned by Zinier or by the Party, e.g. by responding to inquiries or requests;
- Planning, performing and managing the (contractual) relationship with the Party, Customer, and/or data subject; e.g. by performing transactions and orders of products or services, performing accounting, auditing, billing and collection activities, facilitating repairs and providing support services;
- Maintaining and protecting the security of our products, services and websites, preventing and detecting security threats, fraud or other criminal or malicious activities;
- Ensuring compliance with legal obligations (such as record keeping obligations), data subject compliance screening obligations (to prevent white-collar or money laundering crimes), and Zinier policies or industry standards; and
- Solving disputes, enforcing our contractual agreements and establishing, exercising or defending legal claims.
For the aforementioned additional purposes, Zinier may process the following categories of Personal Data from Customers:
- Contact information, such as full name, work address, work telephone number, work mobile phone number, work fax number and work email address;
- Further information necessarily processed in a project or contractual relationship with Zinier or voluntarily provided by the Party’s, Customer’s Contact, such as requests, and project milestones;
- Information collected from publicly available resources, integrity databases; and
- If legally required for Party, Customer compliance screenings: information about relevant and significant litigation or other legal proceedings against the Party.
The processing of personal data is necessary to meet the aforementioned purposes including the performance of the respective (contractual) relationship with the Party. Unless indicated otherwise, the legal basis for the processing of personal data of the Personal Data Protection Acts 2012 (“PDPA”), (“GDPR”), (US Privacy Act), (LFPDPPP), (LGPD);
If Zinier does not collect the respective Personal Data the purposes described may not be met by Zinier.
The purposes for collecting Personal Data shall be documented by the Parties. Personal Data will only be used to provide the Services, and specifically the location and/or geolocation data will only be collected and used to provide the Field Services.
Zinier will never request the permission to collect restricted permission information, such as location and/or geolocation data for the sole purpose of advertising or analytics.
2. Ways of Collecting Personal Data and Location and/or Geolocation data:
Zinier may collect Personal Data of a data subject:
- When the data subject directly provides Zinier with information when: filling out forms for creating an account for the Zinier app; accessing the Zinier app for the enjoyment of Zinier Services and Field Services; sending communications to Zinier via e-mail, phone, standard mail in person strictly related to the Services and Field Services;
Zinier may collect the location and/or geolocation data of a data subject:
- By requesting the data subject’s explicit permission when the data subject logs into the Zinier app, where the data subject shall give explicit permission and acceptance to Zinier for the access and storage of the data subject’s location and/or geolocation information. The location and/or geolocation information collected by Zinier is and remains encrypted at all times and is considered Customer Data, therefore, Zinier has limited access since only the Customer or End User to a specific instance can access it. Zinier requests the explicit permission of the data subject to allow the Zinier app to access this device’s location even when closed or not in use, since this feature is essential for the Zinier app to be useful and not broken.
Zinier may use Personal Data for a purpose other than the originally stated purpose where the new purpose is required by law or where a consent in writing has been obtained from the affected data subject for each new purpose.
If Personal Data is processed for the purpose of making automated individual decisions, the legitimate interests of the data subject must be ensured through appropriate measures.
3. Scope and Application
This Policy applies to the collection and processing of Personal Data relating to data subjects by Zinier for the purpose of providing Zinier’s Services and Field Services under the instructions of the Customer.
We retain the data subject’s Personal Data according to the timeframes required for Zinier to perform the Services and Field Services, respectively, according to the specific services and Customer Agreements, and as long as Zinier maintains a legitimate business need to retain such information such as to comply with applicable laws, tax, audit and/or accounting requirements.
Records of Personal Data are only held in compliance with all applicable legal, regulatory and contractual requirements, and never for any longer periods than required for the due provision of the Services.
Once records have reached the end of their life according to the defined Policy and in compliance with the applicable data protection laws and regulations, they are securely destroyed in a manner that ensures that they can no longer be used in line with ISMS14006 Procedure for the Disposal of Media.
5. Additional Information from the Mobile Application
On some occasions, Zinier may obtain additional information through its mobile application which is downloaded by the Party and/or the data subject in order to receive the Field Services. The Zinier App is required to be used by the data subject in order for Zinier to provide the Field Services, by doing so, Zinier may collect information of the data subject which is strictly related to the Field Services, such as providing the data subject with information for him/her to properly comply with their tasks, and/or to provide information from the data subject’s device to determine the correct performance of the Field Services.
Some information required by the Zinier App to operate, and which is provided by the data subject under explicit consent and permission, can be the login credentials used to access the Zinier App. As disclosed in this document, under explicit permission of the data subject, and Customer’s instructions, the Zinier App collects location and/or geolocation information also to give the data subject notifications, and the rest of the activities enlisted within this document. As already indicated in the contents of this document, the Zinier App, from time to time, will tell the Customer and data subject about the data subject’s device location, even when the data subject is not directly interacting with the Zinier App, whenever the data subject has the geolocation option of the device turned on.
The data subjects are enabled and encouraged to review their device settings to select the specific information they are willing to permit access to for applications such as the Zinier App.
The Zinier app will be broken or rendered as unusable without the request for permission to collect sensitive data, i.e., location and/or geolocation data.
6. Sharing the Information Collected
Zinier may disclose the Personal Data provided by the Party, Customer, and/or data subject (End User) with:
- Only with the Customer who has acquired and/or purchased the Services and licenses to the Zinier app, for the purposes and under the terms and conditions defined in the Customer Agreement; for the avoidance of doubt, the Customer Data is isolated, therefore, only the Customer that owns such Customer Data and the End Users can access it.
- Any authority, government office, court or third parties to: (a) comply with court orders; (b) comply with the terms and conditions stipulated in the corresponding Customer and/or partnership agreement; and (c) maintain and protect the security of the Zinier products, Services, app and websites, and preventing and detecting security threats, fraud or other criminal or malicious activities;
7. Principles for Processing Data
I. Legitimacy & legality of data processing
The processing of Personal Data shall be done lawfully in compliance with the principles contained in this Policy.
Processing is only permissible if at least one of the following prerequisites is fulfilled:
- The data subject has freely given its unambiguous, effective consent; or
- Data processing is for the purpose of establishing a contractual relationship or similar relationship of trust with the data subject; or
- Processing is necessary to safeguard justified interests of the controller (for the purpose of this Policy “Controller” shall mean the Party which determines the purposes and means of data processing; dependent branches, places of business and permanent establishments are part of the Controller) and there are no grounds for assuming that the data subject has an overriding legitimate interest in precluding data processing; or
- Processing is stipulated or permitted by national law and regulations that apply for the Controller; or
- Processing is necessary for compliance with legal obligations to which the Controller is subject; or
- Processing is required, exceptionally, to protect the life, health or safety of the data subject.
- The controller shall provide simple, fast and efficient procedures that allow the data subject to withdraw its consent at any time.
II. Legitimate Purpose
Personal Data shall be processed exclusively for specific, explicit and legitimate purposes. Under no circumstances, shall Personal Data be processed in a way incompatible with the legitimate purposes for which the Personal Data were collected. Participating companies are obligated to adhere to these original purposes when storing and further processing or using data transferred to them by another participating company; the purpose of data processing may only be changed with the consent of the data subject or to the extent permitted by the national law to which the Party transferring the data is subject.
All Personal Data collected by any of the Parties in compliance with this Policy may be in their business records notwithstanding the aforementioned, the ownership of such Personal Data will always be owned by the data subject.
All participating Parties shall process Personal Data in a transparent manner. Data subjects whose Personal Data is processed by the Parties shall be provided with the following information by the involved Party:
- Identity of the Controller and of the Party;
- Categories of recipients or identity of the receiving entity;
- Purpose of processing;
- Origin of the data (unless this is Personal Data collected directly from the data subject);
- Right of objection to the processing of Personal Data of the data subject for advertising purposes;
- Other information to the extent required for reasons of equity, (e.g. rights of information, rectification and erasure).
To the extent that the Personal Data was not collected directly from the data subject, such information -as an exception needs not be provided, if this non-provision of information is necessary in order to protect the data subject or the rights of other persons, if the data subject has already been informed or if this would involve disproportionate effort.
IV. Data accuracy and data up to date
During the collection and processing of the data, Personal Data must be factually correct and in its case, kept up to date.
Where the data is not completely accurate, the Parties shall apply the appropriate measures ensuring that inaccurate or incomplete data is corrected or erased. The Parties are committed to ensure that the Personal Data remains accurate for the purpose for which it was collected.
Data processing shall be guided by the principle of data economy. The objective is to collect, process and use only such Personal Data as is required, (i.e. as little Personal Data as possible).
In particular, use is to be made of the possibility of anonymous or pseudonymous data, provided that the cost and effort involved is commensurate with the desired purpose. Statistical evaluations or studies based on anonymized or pseudonymized data are not relevant for data privacy protection purposes, provided that such data cannot be used to identify the data subject.
Personal Data which is no longer required for the business purposes for which it was originally collected and stored, is to be erased. In the event that statutory retention periods apply, the data shall be blocked rather than erased.
The Parties will make reasonable efforts to ensure that Personal Data is at all times complete and accurate for its stated purpose.
A data subject may apply for access to the Personal Data by submitting a request in writing along with adequate proof of identity to the responsible Party. Where the application is made in person the requirement for proof of identity will be at the discretion of the personnel officer. The data subject will be provided with a copy of all available information that is not subject to restriction as described in this Policy. All Personal Data and Medical Information will be provided at no cost or at a minimal cost that is not prohibitive.
A specific summary of how the Personal Data has been used and to whom it has been disclosed will also be provided. Where a detailed account of disclosure is not available, the Parties will provide a list of organizations to which the Personal Data may have been disclosed.
The Personal Data disclosed to a data subject must be in a form that is reasonable and understandable. Where the meaning of information is not clear then translations and explanations will be provided without additional cost.
Where a data subject suspects that an error exists in its Personal Data, the data subject may submit a request in writing for correction. This request should include any relevant information substantiating the error and should describe the correction to be made. Zinier and the Party will make all reasonable efforts to address any request for correction.
Where the data subject successfully demonstrates an error in their Personal Data the responsible party will make appropriate corrections. Any modifications, additions or deletions to the data subject’s Personal Data will be made only by an authorized person.
Where a request for correction is not successful, the details and substantiating evidence of the request will be recorded and retained by the Parties.
Any of the Parties will endeavor to respond promptly to any reasonable request for disclosure and correction made by a data subject to ensure the continued accuracy of Personal Data.
V. Knowledge and Consent
Knowledge and consent are required from the data subject for the collection, use and disclosure of all Personal Data subject to exceptions noted elsewhere in this Policy.
Consent will not be obtained through deception or misrepresentation.
Any use or disclosure of Personal Data will be within the reasonable expectations of the Parties.
Subject to legal and contractual obligations, the Parties may withdraw their consent on reasonable notice.
VI. Right to withdraw consent
In case a data subject declares its consent for the processing of certain Personal Data by any of the Parties, the data subject has the right to withdraw the consent at any time with future effect (i.e. the withdrawal of the consent does not affect the lawfulness of processing based on the consent before its withdrawal). In case consent is withdrawn, the Parties may only further process the Personal Data where there is another legal ground for the processing.
VII. Retention and Disposal of Personal Data
Any Personal Data collected by the Parties will be retained by them during the period of the relationship between each other, or as directed by applicable legislation or regulation.
Personal Data that is no longer needed for its stated purpose will be destroyed, erased or made anonymous.
All Personal Data disposal procedures, including the disposal of computerized data storage devices, will ensure the complete destruction of Personal Data so that there will be no risk of subsequent unauthorized disclosure of Personal Data.
VIII. Data transfer
The transfer of Personal Data will be exclusively between the Parties.
Any transfer to a third party will be considered only by the data subject prior written consent, except to where the disclosure is required by authorized government representatives who are acting to enforce any federal or state law or carrying out an investigation relating to the enforcement of any federal or state law or gathering information for the purpose of enforcing any federal or state law or where the Parties is required to comply with valid court orders, warrants or subpoenas or other valid legal processes.
The restricted data, such as the location and/or geolocation data of the data subject may only be transferred to third parties, even when the data subject’s written consent has been granted, if necessary to provide or improve current features or services in the Zinie app.
IX. Special categories of Personal Data
Personal Data will not be collected and processed maliciously, indiscriminately or without a reasonable purpose.
Special categories of Personal Data, in other words information about a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sex life, may not be processed as a general principle.
Should the processing of special categories of Personal Data be necessary, the explicit consent of the data subject must be obtained, unless:
- The data subject is not in a position to give his/her consent (e.g. medical emergency) and processing is necessary to protect the vital interests of the data subject or of another person; or
- Processing is required in connection with medical diagnosis, preventive medicine, the provision of care or treatment or the management of healthcare services where data processing is carried out by medical staff who are subject to the obligation of professional secrecy or by other staff subject to an equivalent obligation of secrecy, or
- The data subject has already made public the data in question; or
- Processing is necessary for the establishment, exercise or defense of legal claims in court proceedings, provided that there are no grounds for assuming that the data subject has an overriding legitimate interest in ensuring that such data is not processed; or
- Processing is expressly permitted by law under the applicable local legislation.
X. Data Security
Controllers are to take appropriate technical and organizational measures to ensure the requisite data security, which protects Personal Data against accidental or unlawful erasure, unauthorized use, alteration, against loss, destruction as well as against unauthorized disclosure or unauthorized access. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected. Special categories of Personal Data are to be given special protection.
The security measures to be provided relate in particular to computers (servers and workplace computers), networks, communication links and applications.
Specific measures used to ensure adequate protection of Personal Data include admission controls, system access controls, data access controls, transmission controls, input controls, job controls, availability controls and segregation controls.
Methods of security will include but not be limited to the following:
- Physical security including locked filing cabinets and secure-access offices;
- Organizational security including security clearances and access limited on a “need-to-know” basis and
- Technological security including passwords and encryption.
The Parties will be educated and informed regarding this Policy and related procedures and on the importance of confidentiality of Personal Data and will monitor compliance with the Policy and may observe and investigate the information management practices.
Only personnel who are authorized and have been specifically instructed in compliance with data privacy protection requirements, may collect, process or use Personal Data. Access authorization of the individual employee will be restricted according to the nature and scope of his/her particular field of activity. The employee is prohibited from using Personal Data for private purposes, from transferring or from otherwise making available Personal Data to unauthorized persons. Unauthorized persons in this context include, for example, other employees, to the extent that they do not require the Personal Data to complete their specialist tasks. The confidentiality obligation continues beyond the end of the employment relationship of the employee in question.
XII. Access by Authorized Representatives
All Personal Data will be released internally by Zinier only on a need-to-know basis according to the Access to Data Classification. In the course of normal and reasonable business practices it is the obligation of the Party to grant designated authorized representatives’ access to Personal Data files. This access will not exceed that necessary to accomplish the specific business function of the corresponding representative nor the purpose for which the information was originally collected.
Both Parties having care over Personal Data must comply with the procedures and practices described in this Policy. Any breach of any term or condition of this Policy, whether intentional or unintentional, including but not limited to the unauthorized disclosure of Personal Data is grounds for disciplinary action up to and including the immediate termination of Agreement executed between the Parties.
Any of the Parties will have a procedure that will allow data subjects to challenge to be in compliance with this Policy and will also have procedures to promptly respond to Policy compliance challenges.
All reasonable efforts to investigate and respond to compliance challenges relating to this Policy will be made by the Parties. Where a challenge is well founded the Parties will take action to correct any outstanding problems up to and including amending the Policy and related procedures.
8. Legislation and Regulation
Where the Parties may have data subjects living and working in different jurisdictions the specific rights and obligations of such data subjects may vary between jurisdictions.
The Parties are subject to the Data Protection legislation in all jurisdictions in which the Personal Data is treated. If any term, covenant, condition or provision of this Policy is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the intent of this Policy that the scope of the rights and obligations of the Policy be reduced only for the affected jurisdiction and only to the extent deemed necessary under the laws of the local jurisdiction to render the provision reasonable and enforceable and the remainder of the provisions of the Policy statement will in no way be affected, impaired or invalidated as a result.
Where this Policy provides greater rights and protections to the data subjects than the available governing law, the terms of this Policy will prevail wherever allowed by law.
Data Processing Addendum
This Data Processing Addendum (“DPA”) is entered into by and between Zinier Inc., which expression shall include to its subsidiaries, affiliates, group companies and assignees (hereinafter referred to as “Zinier”, “we”, or “us”) and the party that electronically accepts or otherwise agrees or opts-in to this DPA (“Customer”, or “you”). This DPA is effective as of the date electronically agreed and accepted by you.
You have entered into one or more agreements with us (each, as amended from time to time, an “Agreement”) governing the provision of our real-time error tracking, crash reporting, application monitoring, and visibility service more fully described at www.zinier.com (the “Service”). This DPA will amend the terms of the Agreement to reflect the parties’ rights and responsibilities with respect to the processing and security of Customer Data (as defined below) under the Agreement. If you are accepting this DPA in your capacity as an employee, consultant or agent of Customer, you represent that you are an employee, consultant or agent of Customer, and that you have the authority to bind Customer to this DPA.
Any capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
The following definitions apply to this DPA:
“CCPA” means the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq.); as may be amended, superseded or replaced from time to time.
“Customer Data” means data you submit to, store on, or send to us via the Service.
“Data Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data on systems that are managed and controlled by Zinier. Data Incidents will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including, without limitation, pings, port scans, denial of service attacks, network attacks on firewall or networked systems, or unsuccessful login attempts.
“Europe” means, for the purposes of this DPA, the member states of the European Economic Area, Switzerland and the United Kingdom.
“European Data Protection Legislation” means the data protection and privacy laws and regulations enacted in Europe and applicable to the Personal Data in question, including as applicable: (a) the GDPR; (b) the Federal Data Protection Act of 19 June 1992 (Switzerland); and/or (c) in respect of the United Kingdom, the Data Protection Act 2018 and any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union; in each case as may be amended, superseded or replaced from time to time.
“GDPR” means the General Data Processing 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 Directive 95/46/EC.
“LGDP” means the “Lei Geral de Proteção de Dados Pessoais” (Data Protection Federal Law by its meaning in Portuguese) which regulates and provides the legal framework for personal data protection for Brazilian data subjects.
“LFDPPP” means the “Ley Federal de Protección de Datos Personales en Posesión de los Particulares” (Federal Law on Protection of Personal Data Held by Individuals by its Spanish meaning) which aims to regulate the rights to informational self-determination for all subjects who carry out the processing of personal data in the exercise of their activities.
“Notification Email Address” means the email address(es) that you designate to receive notifications when you create an account to use the Service. You agree that you are solely responsible for ensuring that your Notification Email Address is current and valid at all times.
“Personal Data” means any personal data or personal information (as those terms are defined by European Data Protection Legislation and the CCPA, as applicable) contained within Customer Data.
“Privacy Laws” means: (a) the CCPA; (b) European Data Protection Legislation; (c) LGDP (d) LFDPPP and any other applicable data protection local regulation according to territory, venue and/or jurisdiction.
“Standard Contractual Clauses” or “SCCs” means the standard contractual clauses for the transfer of personal data to processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out in Annex C; as amended, superseded or replaced from time to time in accordance with this DPA.
“Subprocessor” means a third party that we use to process Customer Data in order to provide parts of the Service and/or related technical support. For the avoidance of doubt, Subprocessor shall not include Zinier employees or contractors.
“Term” means the term of the Agreement.
The terms “personal data”, “special categories of personal data” “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in European Data Protection Legislation or if not defined therein, the GDPR.
I. Roles and Regulatory Compliance; Authorization.
- Scope of this DPA. This DPA applies where and only to the extent Zinier processes Personal Data as a processor (for the purposes of European Data Protection Legislation) or service provider (for the purposes of and as defined by the CCPA).
- Roles and Responsibilities. The parties acknowledge and agree as follows: (i) that the subject matter and details of the processing are described in Annex A; (ii) that for the purposes of European Data Protection Legislation, Zinier is a processor of Personal Data and Customer is the controller (or a processor acting on behalf of a third party controller); (iii) if the CCPA applies to processing of Personal Data, Zinier shall act solely as a service provider (as that term is defined under the CCPA) on behalf Customer; (iv) Zinier shall not retain, use or disclose Personal Data for any purpose other than the purposes described in this DPA, and shall not “sell” Personal Data (within the meaning under the CCPA); and (iv) that each of us will comply with our obligations under applicable Privacy Law with respect to the processing of Personal Data.
- Authorization by Third Party Controller. If you are a processor of Personal Data, you warrant to us that your instructions and actions with respect to that Personal Data, including your appointment of Zinier as another processor, have been authorized by the relevant controller.
II. Customer responsibilities.
- Customer Authorization. Zinier shall process Personal Data in accordance with Customer’s documented lawful instructions. By entering into this DPA, you hereby authorize and instruct us to process Personal Data: (i) to provide the Service, and related technical support; (ii) as otherwise permitted or required by your use of the Service and/or your requests for technical support; (iii) as otherwise permitted or required by the Agreement, including this DPA; and (iv) as further documented in any other written instructions that are agreed by the parties. We will not process Personal Data for any other purpose, unless required to do so by applicable law or regulation. The parties agree that the Agreement (including this DPA), and your use of the Service in accordance with the Agreement, set out your complete and final processing instructions and any processing outside the scope of these instructions (if any) shall require prior written agreement between the parties. Customer shall ensure its instructions are lawful and that the processing of Personal Data in accordance with such instructions will not violate Privacy Laws.
- Prohibition on Sensitive Data. You will not submit, store, or send any sensitive data or special categories of personal data (collectively, “Sensitive Data”) to us for processing, and you will not permit nor authorize any of your employees, agents, contractors, or data subjects to submit, store, or send any Sensitive Data to us for processing. You acknowledge that we do not request or require Sensitive Data as part of providing the Service to you, that we do not wish to receive or store Sensitive Data, and that our obligations in this DPA will not apply with respect to Sensitive Data.
- Deletion During Term. We will enable you to delete Personal Data during the Term in a manner that is consistent with the functionality of the Service. If you use the Service to delete any Personal Data in a manner that would prevent you from recovering Personal Data at a future time, you agree that this will constitute an instruction to us to delete Personal Data from our systems in accordance with our standard processes and applicable law. We will comply with this instruction as soon as reasonably practicable, but in all events in accordance with applicable law.
- Deletion When Term Expires. When the Term expires, we will destroy any Personal Data in our possession or control. This requirement will not apply to the extent that we are required by applicable law to retain some or all of the Personal Data, in which event we will isolate and protect the Personal Data from further processing and delete in accordance with Zinier’s deletion practices, except to the extent required by law. You acknowledge that you will be responsible for exporting, before the Term expires, any Personal Data you want to retain after the Term expires.
- Security Measures. We will implement and maintain appropriate technical and organizational measures to protect Personal Data against Data Incidents and to preserve the security and confidentiality of Personal Data, as described in Annex B (collectively, the “Security Measures”). Zinier shall ensure that any person who is authorized by Zinier to process Personal Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty). Customer acknowledges that Security Measures are subject to technical progress and development and that accordingly we may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service.
- Data Incidents. Upon becoming aware of a Data Incident, we will notify you promptly and without undue delay, and will take reasonable steps to minimize harm and secure Personal Data. Any notifications that we send you pursuant to this Section 4.2 will be sent to your Notification Email Address and will describe, to the extent possible and/or known to Zinier, the details of the Data Incident, the steps we have taken to mitigate the potential risks, and any suggestions we have for you to minimize the impact of the Data Incident. We will not assess the contents of any Personal Data in order to identify information that may be subject to specific legal requirements. You are solely responsible for complying with any incident notification laws that may apply to you, and to fulfilling any third-party notification obligations related to any Data Incident(s). Our notification of or response to a Data Incident under this Section will not constitute an acknowledgement of fault or liability with respect to the Data Incident.
- Your Security Responsibilities. You agree that, without prejudice to our obligations under Sections 4.1 or 4.2: (i) you are solely responsible for your use of the Service, including making appropriate use of the Service to ensure a level of security appropriate to the risk in relation to Customer Data, securing any account authentication credentials, systems, and devices you use to use the Service, and backing up your Customer Data. You understand and agree that we have no obligation to protect Customer Data that you elect to store or transfer outside of our or our Subprocessors’ systems (e.g., offline or on-premise storage). You are solely responsible for evaluating whether the Service and our commitments under this Section 4 meet your needs, including with respect to your compliance with any of your security obligations under Privacy Laws, as applicable.
- Audit Rights.
- Audit Reports. You acknowledge that Zinier is regularly audited against various information security standards by independent third-party auditors and internal auditors, respectively. Upon request, we shall supply (on a confidential basis) a summary copy of our audit report(s), so that you can verify our compliance with the audit standards against which it has been assessed, and this DPA. Further, we will provide written responses (on a confidential basis) to all reasonable requests for information necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year.
- Independent Audits. While it is the parties’ intention to rely ordinarily on the provision of the above audit report(s) to verify our compliance with this DPA, we will allow an internationally-recognized independent auditor that you select to conduct audits to verify our compliance with our obligations in this DPA. You must send any requests for audits under this Section 4.4.2 to email@example.com. Following our receipt of your request, the parties will discuss and agree in advance on the reasonable start date, scope, duration, and security and confidentiality controls applicable to the audit. You will be responsible for any costs associated with the audit. You agree not to exercise your audit rights under this Section 4.4.2 more than once in any twelve (12) calendar month period, except (i) if and when required by a competent data protection authority; or (ii) an audit is necessary due to a Data Incident.
Data Subject Rights; Data Export.
- Access; Rectification; Restricted Processing; Portability. You acknowledge that the Service may, depending on the functionality of the Service, enable you to: (i) access the Customer Data; (ii) rectify inaccurate Customer Data; (iii) restrict the processing of Customer Data; (iv) delete Customer Data; and (v) export Customer Data.
- Cooperation; Data Subjects’ Rights. To the extent that you cannot access the relevant Personal Data within the Service, we will provide you, at your expense, with all reasonable and timely assistance to enable you to respond to: (i) requests from data subjects who wish to exercise any of their rights under applicable Privacy Laws; and (ii) any other correspondence, enquiry or complaint received from a data subject, supervisory authority or other third party in connection with the processing of the Customer Data. In the event that any such request, correspondence, enquiry or complaint is made directly to us, we will promptly inform you of it, and provide you with as much detail as reasonably possible.
- Data Storage and Processing Facilities. You agree that we may, subject to Section 6.2, store and process Customer Data in the United States and any other country in which we or our Subprocessors maintain data processing operations. Zinier shall ensure that such transfers are made in compliance with applicable Privacy Laws and this DPA.
- Transfers of Data out of Europe; Your Responsibilities. If the storage and/or processing of Personal Data as described in Section 6.1 involves transfers of Personal Data to Zinier outside of Europe, and European Data Protection Legislation applies to the transfer (collectively, “Transferred Personal Data”), then (i) we agree to abide by and process Transferred Personal Data in accordance with the Standard Contractual Clauses, which are incorporated into and form a part of this DPA; (ii) we agree to provide and comply with the Additional Safeguards, as described in Annex B; and (iii) for so long as Zinier is self-certified to the Privacy Shield we shall continue to process Transferred Personal Data in compliance with the Privacy Shield Principles. With respect to Transferred Personal Data, you agree that if we adopt an alternative data transfer mechanism (including any new version of, or successor to, the Standard Contractual Clauses or Privacy Shield adopted pursuant to applicable European Data Protection Legislation) for Transferred Personal Data not described in this DPA (“Alternative Transfer Solution”), the Alternative Transfer Solution shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Solution complies with applicable European Data Protection Legislation and extends to the territories to which Transferred Personal Data is transferred), and if we request that you take any action (including, without limitation, execution of documents) reasonably required to give full effect to that solution, you will promptly do so.
- Standard Contractual Clauses. The parties agree that (i) purely for the purposes of the descriptions in the Standard Contractual Clauses, Zinier is the “data importer” and you are the “data exporter” (notwithstanding that you may be located outside Europe and/or you may be acting as a processor on behalf of third party controllers); and (ii) it is not the intention of either party to contradict or restrict any of the provisions set forth in the Standard Contractual Clauses and, accordingly, if and to the extent the Standard Contractual Clauses conflict with any provision of the Agreement (including this DPA), the Standard Contractual Clauses shall prevail to the extent of such conflict. In particular, nothing in the DPA shall exclude the rights of third-party beneficiaries granted under the Standard Contractual Clauses.
- Consent to Engagement. You specifically authorize us to engage third parties as Subprocessors. Whenever we engage a Subprocessor, we will enter into a contract with that Subprocessor which imposes data protection terms that require the Subprocessor to protect Personal Data to an equivalent standard required under this DPA, and we shall remain responsible for the Subprocessor’s compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause us to breach any of our obligations under this DPA.
- List of Subprocessors. A list of our current Subprocessors are: Amazon Web Services, Google Cloud Platform, and SendGrid. We may update the list of approved Subprocessors upon written notice to you, at which point you will have the opportunity to object as described in Section 7.3 below.
- Objections; Sole Remedy. Within thirty (30) days of our engagement of any Subprocessor (as determined by the date that we notify you of an update to the list of Subprocessors described in Section 7.2, above), you have the right to object to the appointment of that Subprocessor on reasonable grounds that the Subprocessor does not or cannot comply with the requirements set forth in this DPA (each, an “Objection”). If we do not remedy or provide a reasonable workaround for your Objection within a reasonable time, you may, as your sole remedy and our sole liability for your Objection, terminate the Agreement for your convenience, and without further liability to either party. We will not owe you a refund of any fees you have paid in the event you decide to terminate the Agreement pursuant to this Section.
You acknowledge that we are required under European Data Protection Legislation (i) to collect and maintain records of certain information, including, among other things, the name and contact detail of each processor and/or controller on whose behalf we are acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (ii) to make such information available to the supervisory authorities. Accordingly, if European Data Protection Legislation applies to the processing of Personal Data, you will, when requested, provide this additional information to us, and ensure that the information is kept accurate and up-to-date.
Data Protection Impact Assessment.
We will provide you with reasonable and timely assistance as you may require in order to conduct a data protection impact assessment and, if necessary, consult with the relevant data protection authority.
There are no third-party beneficiaries to this DPA. Except as expressly provided herein, nothing in this DPA will be deemed to waive or modify any of the provisions of the Agreement, which otherwise remains in full force and effect. Specifically, nothing in this DPA will affect any of the terms of the Agreement relating to Zinier’s limitations of liability, which will remain in full force and effect. If you have entered into more than one Agreement with us, this DPA will amend each of the Agreements separately. In the event of a conflict or inconsistency between the terms of this DPA and the terms of the Agreement, the terms of this DPA will control.
Change in Privacy Laws
Notwithstanding anything to the contrary in the Agreement (including this DPA), in the event of a change in Privacy Laws or a determination or order by a supervisory authority or competent court affecting this DPA or the lawfulness of any processing activities under this DPA, we reserve the right to make any amendments to this DPA as are reasonably necessary to ensure continued compliance with European Data Protection Legislation or compliance with any such orders.
Annex A to Schedule A
Data Processing Description
Controller (Data Exporter): Customer (as defined in the Data Processing Addendum (“DPA”)
Processor (Data Importer): Zinier
Subject Matter: Zinier’s provision of the Service to Customer, and related technical support.
Processing Duration: Throughout the Term of the Agreement plus the period from expiry of the Term until deletion of Personal Data by Zinier in accordance with the Agreement.
Nature and Purpose of the Processing: Zinier will process personal data submitted to, stored on, or sent via the Service for the purpose of providing the Service and related technical support in accordance with this DPA.
Data Subjects: The personal data transferred concern the following categories of data subjects:
- End users of the Service
- Individuals whose personal data is supplied by end users of the Service.
Categories of Data: The personal data transferred concern the following categories of data:
- Direct identifying information (e.g. name, email address, telephone)
- Indirect identifying information (e.g. job title, gender, date of birth)
- Device identification data and traffic data (e.g. IP addresses, MAC addresses, web logs, browser agents)
- Any personal data supplied by end users of the Service
Special Categories of Data: The personal data transferred to Zinier through the Service is determined and controlled by Customer. As such, Customer controls the content of the personal data transferred to Zinier and is solely responsible for ensuring the legality of the categories of data it may choose to transfer to Zinier. The DPA includes an express prohibition on the transfer of special categories of personal data to Zinier.
Processing Operations: Zinier will perform the following basic processing activities: processing to provide the Service in accordance with the Agreement; processing to perform any steps necessary for the performance of the Agreement; and processing to comply with other reasonable instructions provided by Customer (e.g. via email) that are consistent with the terms of the Agreement.
Annex B to Schedule A - Security Measures
Access control to premises and facilities
Measures must be taken to prevent unauthorized physical access to premises and facilities holding personal data. Measures shall include:
- Access control system
- ID reader, magnetic card, chip card
- (Issue of) keys
- Door locking (electric door openers etc.)
- Surveillance facilities
- Alarm system, video/CCTV monitor
- Logging of facility exits/entries
Access control to systems
Measures must be taken to prevent unauthorized access to IT systems. These must include the following technical and organizational measures for user identification and authentication:
- Password procedures (incl. special characters and minimum length)
- No access for guest users or anonymous accounts
- Central management of system access
- Access to IT systems subject to approval from HR management and IT system administrators
Access control to data
Measures must be taken to prevent authorized users from accessing data beyond their authorized access rights and prevent the unauthorized input, reading, copying, removal modification or disclosure of data. These measures shall include:
- Differentiated access rights
- Access rights defined according to duties
- Automated log of user access via IT systems
Measures must be taken to prevent the unauthorized access, alteration or removal of data during transfer, and to ensure that all transfers are secure and are logged. These measures shall include:
- Encryption in transit and at rest.
- Creating an audit trail of all data transfers
Measures must be put in place to ensure all data management and maintenance is logged, and an audit trail of whether data have been entered, changed or removed (deleted) and by whom must be maintained. Measures should include:
- Logging user activities on IT systems
- That it is possible to verify and establish to which bodies personal data have been or may be transmitted or made available using data communication equipment
- That it is possible to verify and establish which personal data have been input into automated data-processing systems and when and by whom the data have been input
Measures should be put in place to ensure that data is processed strictly in compliance with the data importer’s instructions. These measures must include:
- Unambiguous wording of contractual instructions
- Monitoring of contract performance
Measures should be put in place designed to ensure that data are protected against accidental destruction or loss. These measures must include:
- Installed systems may, in the case of interruption, be restored
- Systems are functioning, and that faults are reported
- Stored personal data cannot be corrupted by means of a malfunctioning of the system
- Uninterruptible power supply (UPS)
- Business Continuity procedures
- Remote storage
Measures should be put in place to allow data collected for different purposes to be processed separately. These measures should include:
- Restriction of access to data stored for different purposes according to staff duties.
- Segregation of business IT systems
- Segregation of IT testing and production environments
Measures and assurances regarding U.S. government surveillance (“Additional Safeguards”).
- Zinier uses encryption both in transit and at rest (see Section 4 above).
- As of the date of this DPA, Zinier has not received any national security orders of the type described in Paragraphs 150-202 of the judgment in the EU Court of Justice Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems.
- No court has found Zinier to be the type of entity eligible to receive process issued under FISA Section 702: (i) an “electronic communication service provider” within the meaning of 50 U.S.C § 1881(b)(4) or (ii) a member of any of the categories of entities described within that definition.
- Zinier shall not comply with any request under FISA for bulk surveillance, i.e., a surveillance demand whereby a targeted account identifier is not identified via a specific “targeted selector” (an identifier that is unique to the targeted endpoint of communications subject to the surveillance).
- Zinier shall use all available legal mechanisms to challenge any demands for data access through national security process that Zinier receives, as well as any non-disclosure provisions attached thereto.
- Zinier shall take no action pursuant to U.S. Executive Order 12333.
- Starting no later than September 30, 2020, Zinier will publish a transparency report indicating the types of binding legal demands for the personal data it has received, including national security orders and directives, which shall encompass any process issued under FISA Section 702.
- Zinier will notify Customer if Zinier can no longer comply with the Standard Contractual Clauses or these Additional Safeguards, without being required to identify the specific provision with which it can no longer comply.
Annex C to Schedule A
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, Customer (as data exporter) and Zinier (as data importer), each a “party” and 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:
- ‘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;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of 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;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or 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;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of 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;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7: Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against its 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.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9: Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12: Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
Data Processing Description
Appendix 2 to the Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached).
Appendix 3 to the Standard Contractual Clauses
The parties acknowledge that Clause 10 of the Clauses permits them to include additional business-related terms provided they do not contradict with the Clauses. Accordingly, this Appendix sets out the parties’ interpretation of their respective obligations under specific Clauses identified below.
For the purposes of this Appendix, “DPA” means the Data Processing Addendum in place between data importer and data exporter, to which these Clauses are incorporated, and “Agreement” shall have the meaning given to it in the DPA.
Clauses 4(h) and 8: Disclosure of these Clauses
- Data exporter agrees that these Clauses constitute data importer’s Confidential Information (as that term is defined in the Agreement) and may not be disclosed by data exporter to any third party without data importer’s prior written consent unless permitted pursuant to Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.
Clauses 5(a) and (b): Suspension of data transfers and termination
- The parties acknowledge that for the purposes of Clause 5(a), data importer may process the personal data only on behalf of the data exporter and in compliance with its documented instructions as set out in the DPA and that pursuant to the DPA, these instructions shall the data exporters complete and final instructions.
- The parties acknowledge that if data importer cannot provide compliance in accordance with Clause 5(a) and/or Clause 5(b), the data importer agrees to promptly inform 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 affected parts of the Services in accordance with the terms of the Agreement.
- If the data exporter intends to suspend the transfer of personal data and/or terminate the affected parts of the Services, it shall first provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).
- In addition, the data exporter and data importer shall reasonably cooperate with each other during the Cure Period to agree what additional safeguards or other measures, if any, may be reasonably required to ensure the data importer’s compliance with the Clauses and applicable data protection law.
- If, after the Cure Period, the data importer has not or cannot cure the non-compliance in accordance with paragraphs 4 and 5 above, then the data exporter may suspend and/or terminate the affected part of the Services in accordance with the provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by the data exporter prior to suspension or termination).
Clause 5(f): Audit
- Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 4 of the DPA.
Clause 5(j): Disclosure of subprocessor agreements
- The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
- Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably in connection with such subprocessing agreement to data exporter.
Clause 6: Liability
- Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event shall any party limit its liability with respect to any data subject rights under these Clauses.
Clause 11: Onward subprocessing
- The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled “FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC” the data exporter may provide a general consent to onward subprocessing by the data importer.
- Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with Section 7 of the DPA.
Last modified: January 29, 2021.