Data Processing Agreement

Data Processing Agreement

This Data Processing Agreement (“DPA”) is incorporated into the Yes We Fulfill Terms of Service.

1. Definitions

“Controller” means the person who, alone or jointly with others, determines the purposes and means of the processing of Personal Data.

“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy that applies to the respective party in the role of Processing Personal Data in question under the Service Agreement, in each case as amended, repealed, consolidated, or replaced from time to time. 

“Data Subject” means the individual to whom Personal Data relates.

“Europe” means the European Union, the European Economic Area, and/or their member states, Switzerland and the United Kingdom. 

“European Data Protection Laws” means data protection laws applicable in Europe, in each case, may be amended, superseded, or replaced.  

“European Data” means Personal Data that is subject to the protection of European Data Protection Laws.

“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed by us and/or our Sub-Processors in connection with the provision of the Service.

“Personal Data” means any information relating to an identified or identifiable individual or personally identifiable information under applicable Data Protection Laws.

“Processing” means any operation or set of operations that is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.

“Processor” means a person who Processes Personal Data on behalf of the Controller.

“Service Agreement” means the agreement between us and the User regarding the Service, including Yes We Fulfill Terms of Service and any applicable additional contractual document.

“Standard Contractual Clauses” means the standard contractual clauses for Processors annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021, in the form set out in Schedule 4; as may be amended, superseded, or replaced.

“Sub-Processor” means any Processor engaged by us or our affiliates to assist in fulfilling our obligations with respect to the provision of the Services under the Agreement.  Sub-Processors may include third parties or our affiliates but will exclude our employees or consultants.  “User” means our customer using the Yes We Fulfill Application.

2. Our Obligations

2.1. We will only Process Personal Data for the purposes described in this DPA, in accordance with the User’s lawful instructions, or to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to Users or the User industry that are not generally applicable to us.

2.2 If we become aware that we cannot Process Personal Data in accordance with the User’s Instructions due to a legal requirement under any applicable law, we will (i) promptly notify the User of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, stop all Processing (other than storing and maintaining the security of the affected Personal Data) until such time as User’s Instructions are modified.

3. Confidentiality and Security

3.1. We will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Schedule 2 to this DPA (“Security Measures”). Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures. 

3.2. We will ensure that our personnel is subject to appropriate confidentiality obligations (including statutory obligations) with respect to that Personal Data.

3.3. We will notify the User promptly after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by the User. At the User’s request, we will promptly provide the User with such reasonable assistance as necessary to enable the User to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if the User is required to do so under Data Protection Laws.

3.4. We will delete or return all User Data, including Personal Data Processed pursuant to this DPA, on termination or expiration of the User’s subscription to the Service in accordance with the Service Agreement. This term shall apply except where we are required by the applicable law to retain some or all of the User Data, or where we have archived User Data on backup systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. 

4. User Obligations

4.1. User is responsible to comply with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us. Without limiting the generality of the foregoing, the User shall be responsible for: (i) complying with all requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consent, (ii) ensuring the User has the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement, (iii) ensuring that User’s Instructions to us regarding the processing of Personal Data comply with applicable laws, including Data Protection Laws;

4.2. User shall determine whether the security measures provided in connection with the Service adequately meet its obligations under applicable Data Protection Laws. User shall be responsible for securely using the Service, including by protecting the security of Personal Data in transit to and from the Service, making backup copies of Personal Data, and securing authentication credentials necessary to access the Service.

5. Data Subject Requests

5.1. Upon receiving a Data Subject Request, the User shall first use the Service to retrieve relevant information to respond to the Data Subject Request or an inquiry by a Data Protection Authority. If the User is unable to independently address a Data Subject Request through the Service, we will provide reasonable assistance to the User to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. The user shall reimburse us for the commercially reasonable costs (including employee time) arising from such assistance.

5.2. If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform the User and will advise the Data Subject to submit their request to the User. The user is entirely responsible for responding substantively to any Data Subject Requests or communications involving Personal Data.

6. Sub-Processors

6.1. We may engage Sub-Processors to Process Personal Data. User agrees that we may engage Sub-Processor at our discretion, subject to our obligations per Section 6.2 below.

6.2. Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

7. Data Transfers

7.1. User acknowledges and agrees that Personal Data may be transferred to Canada and to other jurisdictions where Sub-Processors are conducting business. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

7.2. User acknowledges that in order to perform our obligations under the Service Agreement, we must transfer all data pertaining to the order to all jurisdictions listed in Schedule 3. If deemed necessary by User, User shall be responsible for obtaining explicit consent from Data Subjects regarding any such transfer.

8. Data subject to European Data Protection Laws

8.1. This Section 8 shall apply only with respect to European Data.

8.2. When Processing European Data in accordance with User’s Instructions, the parties acknowledge and agree that the User is the Controller of European Data and we are the Processor.

8.3. If we believe that the User’s Instruction infringes European Data Protection Laws (where applicable), we will inform the User promptly.

8.4. We will allow User to reasonably object to the engagement of new Sub-Processors relating to the protection of Personal Data within 30 days of notification. Where the User objects to the appointment of a new Sub-Processor, the parties will discuss the User’s concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either forego the appointment of the new Sub-Processor, ensure that no User Data is Processed by such new Sub-Processor, or permit the User to suspend or terminate the affected Service in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by User prior to suspension or termination).

8.5. For the purposes of Clause 9(c) of the Standard Contractual Clauses, as applicable, the User acknowledges that Sub-Processor agreements may be subject to confidentiality obligations, but we shall use reasonable efforts to require any Sub-Processor we appoint to permit the disclosure of the Sub-Processor agreement to User and shall provide (on a confidential basis) all information reasonably available for disclosure.

8.6. We will provide reasonable assistance to the User with data protection impact assessments, and dealings with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws. Users acknowledge that such assistance will be provided only to the extent needed to comply with European Data Protection  Laws.

8.7. Transfer Mechanisms for Data Transfers. 

(a). Other than as required to perform our obligations under the Service Agreement as set forth in Section 7.2, we shall not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.

(b). The parties agree that the Standard Contractual Clauses shall only apply between the parties insofar as there is no other mechanism to effect a legal transfer of  European Data required under the Service Agreement and that for the purposes of the Standard Contractual Clauses, (i) we will be the “data importer” and User will be the “data exporter” (ii) Schedule 1 and Schedule 2 of this DPA shall be applicable as Annexes to the Standard Contractual Clauses;  and (iii) if and to the extent, the Standard Contractual Clauses conflict with any provision of this DPA, the Standard Contractual Clauses will prevail to the extent of such conflict.

(c). User shall provide reasonable advance notice if it considers that we cannot fulfill our obligations under the Standard Contractual Clause in order to afford us the possibility of curing the non-compliance. If we have not or cannot cure the non-compliance, the User may suspend or terminate the affected part of the Service in accordance with the Agreement without liability to either party (but without prejudice to any fees User has incurred prior to such suspension or termination).

8.8. We will make all information reasonably necessary to demonstrate compliance with this DPA available to User and allow for and contribute to audits, including inspections conducted by User or its auditors in order to assess compliance with this DPA. User agrees to exercise its audit rights under this DPA and Clause 8.9 of the Standard Contractual Clauses by instructing us to comply with the audit measures described in this section. Upon request, we will supply (on a confidential basis) a summary copy of the security testing report(s) to the User so that the User can verify our compliance with this DPA.  Further, at User’s written request, we will provide written responses (on a confidential basis) to all reasonable requests for information necessary to confirm our compliance with this DPA. Users may not exercise this right more than once per calendar year unless there are reasonable grounds to suspect non-compliance with the DPA.

9. Limitation of Liability

9.1. Except as prohibited under applicable law, the limitation of liability set forth in the Service Agreement, if any, as applicable to each party, shall be applicable to each party’s liability.

10. General Provisions

10.1. Amendments. Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms that apply in the ‘Amendment; No Waiver’ section of the Master Terms will apply.

10.2. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the other provisions of the DPA will remain in force.

10.3. Governing Law. This DPA will be governed by and construed in accordance with the law applicable in the Service Agreement.

Schedule 1 – Details of Processing

A. List of Parties

Data exporter:

Name: The User, as defined in the Service Agreement 

Address: The User’s address, as set out in the Service Agreement

Contact person’s name, position, and contact details: The User’s contact details, as set out in the Service Agreement

Activities are relevant to the data transferred under these Clauses: Processing of Personal Data in connection with User’s use of the Service under the Service Agreement.

Role (controller/processor): Controller

Data importer:

Name: Yes We Fulfill Inc.

Address: 385 ch. des Mômes, Saint-Sauveur QC J0R 1R1, Canada

Contact person’s name, position, and contact details: Olivier Faubert, CEO,  support@yeswefufll.com. 

Activities are relevant to the data transferred under these Clauses: Processing of Personal Data in connection with User’s use of the Service under the Service Agreement.

Role (controller/processor): Processor

B. Description of Transfer

Categories of Data Subjects whose Personal Data is Transferred

End-Customers purchasing customized products from User’s Shopify Store using the Service.

Categories of Personal Data Transferred

1. Contact Information;
2. Products ordered, sizing, 
3. Any other Personal Data submitted by User to the Service.

The parties do not anticipate the transfer of sensitive data.

Frequency of the transfer

Continuous

Nature of the Processing

Personal Data will be processed in accordance with the Service Agreement (including this DPA) and may be subject to the following Processing Activities:

1. Storage and other Processing necessary to manufacture and deliver products ordered through the Service;
2. Disclosure in accordance with the Service Agreement (including this DPA and applicable privacy policy) and/or as compelled by applicable laws.

Purpose of the transfer and further processing

We will Process Personal Data as necessary to provide the Services pursuant to the Service Agreement and as further instructed by the User.

Retention Period

We will process Personal Data for the duration of the Service Agreement unless otherwise agreed in writing.

C. Competent Supervisory Authority

For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as the competent supervisory authority is either

(i) where the User is established in an EU Member State, the supervisory authority responsible for ensuring the User’s compliance with the GDPR;

(ii) where User is not established in an EU Member State, France.

Schedule 2 – Security Measures

This Schedule forms part of the DPA.

We currently observe the Security Measures described in this Schedule 2.

Schedule 3 – Sub-Processors

Schedule 4 – Standard Contractual Clauses

STANDARD CONTRACTUAL CLAUSES

Controller to Processor

SECTION I

Clause 1

Purpose and scope

(a). The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of data to a third country.

(b). The Parties:

(i). the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii). the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c). These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d). The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a). These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b). These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a). Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e); 

(iii) Clause 9(a), (c), (d) and (e); 

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

(b). Paragraph (a) is without prejudice to the rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a). Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b). These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c). These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a). An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b). Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c). The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

8.1. Instructions

(a). The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b). The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4. Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5. Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular, the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6. Security of processing

(a). The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context, and purpose(s) of processing, and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In the case of pseudonymization, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b). The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management, and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c). In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and an approximate number of data subjects and personal data records concerned), its likely consequences, and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d). The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular, to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7. Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter ‘sensitive data), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise, or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9. Documentation and compliance

(a). The data importer shall promptly and adequately deal with inquiries from the data exporter that relate to the processing under these Clauses.

(b). The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c). The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d). The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e). The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a). The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b). Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c). The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d). The data importer shall remain fully responsible to the data exporter for the performance of the subprocessor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.

(e). The data importer shall agree to a third-party beneficiary clause with the sub-processor whereby – in the event, the data importer has factually disappeared, ceased to exist in law, or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a). The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.

(b). The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c). In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

(a). The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b). In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c). Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d). The Parties accept that the data subject may be represented by a not-for-profit body, organization, or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e). The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f). The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a). Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b). The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c). Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d). The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processors), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e). Where more than one party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f). The Parties agree that if one party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g). The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a). [Where the data exporter has been established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as a competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as a competent supervisory authority.

[Where the data exporter is not established in an EU Member State but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I.C, shall act as a competent supervisory authority. 

(b). The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(a). The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination are applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679 are not in contradiction with these Clauses.

(b). The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of the processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii) any relevant contractual, technical, or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c). The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d). The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e). The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). 

(f). Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1. Notification

(a). The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter)

if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b). If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c). Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). 

(d). The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e). Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2. Review of legality and data minimization

(a). The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b). The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. 

(c). The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a). The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b). In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c). The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d). Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e). Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply, or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 18

Choice of forum and jurisdiction

(a). Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b). The Parties agree that those shall be the courts of  _____ (specify Member State).

(c). A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d). The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

A.   LIST OF PARTIES

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: ___________________________________________

Address: _________________________________________

Contact person’s name, position and contact details: _________________________

___________________________________________________________________

Activities relevant to the data transferred under these Clauses:

___________________________________________________________________

___________________________________________________________________

Signature and date: ___________________________________________________

Role (controller/processor): 

2. …

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: ___________________________________________

Address: _________________________________________

Contact person’s name, position and contact details: _________________________

___________________________________________________________________

Activities relevant to the data transferred under these Clauses:

___________________________________________________________________

___________________________________________________________________

Signature and date: ___________________________________________________

Role (controller/processor): 

2. …

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

…

Categories of personal data transferred

…

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitations, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

…

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

…

Nature of the processing

…

Purpose(s) of the data transfer and further processing

…

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

…

For transfers to (sub-) processors, also specify the subject matter, nature, and duration of the processing

…

C.   COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

…

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA