Last Updated: October 22, 2021
ArborXR Data Processing Agreement
The ArborXR Data Processing Agreement (“DPA”) is a part of and incorporated into the ArborXR Terms of Service (“Terms”) between you, the individual or entity accepting the Terms (“Customer”, “you”, “your”) and ABXR Labs, Inc. d/b/a ArborXR (“ArborXR” or “we” or “us”), (each a “Party” and collectively the “Parties”) and is made effective on the date on which you accepted the Terms. Capitalized terms used but not otherwise defined in the DPA will have the meanings set forth in the Terms.
The mutual agreement by ArborXR and you to the terms of this Data Processing Agreement is evidenced (a) by your online electronic or written acceptance of the Terms by you or your authorized representative, and/or (b) by your use of ArborXR’s Services and Materials after an update to the Terms incorporating this DPA. A Customer enters into this DPA on behalf of itself, and, if required by applicable data protection laws and regulations, on behalf of its Authorized Affiliates to the extent that ArborXR processes Personal Data for which such Authorized Affiliate acts as the data controller. For the purposes of this DPA, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.
BY ACCEPTING THE DPA OR USING THE SERVICES, YOU AGREE TO THE DPA, INCLUDING THAT ARBORXR MAY PROCESS PERSONAL DATA ON YOUR BEHALF AS SET FORTH HEREIN.
You may be required to take additional steps for compliance including but not limited to notifying the data protection authority of transfers of data or notifying said authority of the existence of this DPA. Should you require a separately signed copy of the Data Processing Agreement, you must submit an email request to [email protected].
Data, including Personal Data, may be transferred to, processed, maintained or stored on servers or databases by ArborXR or third-party service providers outside of the European Union (“EU”) or European Economic Area (“EEA”). You are responsible for compliance with the particular national requirements of your European Union member state, as applicable.
ArborXR agrees and you agree to the terms of the Data Processing Agreement as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the EU, the EEA and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Terms with ArborXR, but has not signed its own Terms and does not own a Subscription with ArborXR.
“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.
“Controller” means the entity or individual, if applicable, which determines the purposes and means of the Processing of Personal Data.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the EU, the EEA and their member states, Switzerland, the United Kingdom and the United States and its states, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates including Users.
“GDPR” means the 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/E C (General Data Protection Regulation), including as implemented or adopted under the laws of the United Kingdom.
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations and where each (i) or (ii) is User Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.
“Standard Contractual Clauses” means the agreement by and between ABXR Labs, Inc. d/b/a ArborXR and attached hereto as Schedule 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
“Sub-processor” means any Processor engaged by ArborXR.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. Processing of Personal Data
2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data submitted to the Services by you or your Users, you are the Controller, ArborXR is the Processor and that ArborXR will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
2.2. Processing of Personal Data by You. You shall, in your use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of your use of ArborXR as a Processor. For the avoidance of doubt, your instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. You shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which you acquired Personal Data. You specifically acknowledge that your use of the Services will not violate the rights of any Data Subject.
2.3 Processing of Personal Data by ArborXR. ArborXR shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with your documented instructions for the following purposes: (a) processing in accordance with the Terms and applicable Supplemental Terms; (b) processing initiated by Users in their use of the Services; and (c) processing to comply with other documented reasonable instructions provided by you (e.g., via email) where such instructions are consistent with the Terms.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by ArborXR is the performance of the Services pursuant to the Terms. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 to this DPA.
3. Rights of Data Subjects
3.1 Personal Data Subject Request. ArborXR shall, to the extent legally permitted, promptly notify you if we receive a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or its right not to be subject to an automated individual decision making related to Data Subject’s Personal Data (“Data Subject Request” or “DSR”). Taking into account the nature of the Processing, we will provide commercially reasonable efforts to assist you in responding to such DSR, to the extent we are legally permitted to do so and the response to such DSR is required under Data Protection Laws and Regulations. To the extent legally permitted, you shall be responsible for any costs arising from ArborXR’s provision of such assistance.
3.2 Assistance with Personal Data Requests. With regard to the processing of User’s Personal Data, ArborXR shall, if not prohibited by applicable law, notify you without unreasonable delay after receipt, if ArborXR: (a) receives a request for information from the Supervisory Authority or any other competent authority regarding User’s Personal Data; (b) receives a complaint or request from a third party regarding obligations of yours or of ArborXR under applicable law; or (c) receives any other communication which directly pertains to the Processing or protection of User’s Personal Data. If ArborXR is the Processor, ArborXR shall not respond to such requests, complaints or communications, unless you have given ArborXR written instructions to that effect or if such is required under a statutory or regulatory provision. In the latter case, prior to responding to the request, ArborXR shall notify you of the relevant statutory or regulatory provision and ArborXR shall limit its response to what is necessary to comply with the request.
ArborXR shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. ArborXR shall ensure that such confidentiality obligations survive the termination of the personnel engagement and that access to Personal Data is limited to those personnel performing Services in accordance with the Terms.
5.1 Appointment of Sub-processors. You acknowledge and agree that (a) ArborXR may be retained as Sub-processors; and (b) ArborXR may engage third-party Sub-processors in connection with the provision of the Services. ArborXR will ensure that we have entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor.
5.2 List of Current Sub-processors and Notification of New Sub-processors. ArborXR shall make available to you the current list of Sub-processors for our Services upon request made by emailing [email protected] or by posting a list on our Website.
5.3 Objection Right for New Sub-processors. You may object to ArborXR’s use of a new Sub-processor by notifying us in writing by emailing [email protected] In the event you object to a new Sub-processor, ArborXR will use commercially reasonable efforts to make available or recommend a commercially reasonable change to your configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub- processor.
5.4 Liability. ArborXR shall be liable for the acts and omissions of our Sub-processors to the same extent we would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Terms.
6.1 Controls for the Protection of Personal Data. ArborXR shall establish and maintain commercially reasonable administrative, physical, and technical safeguards for protection of Personal Data. These safeguards will include an industry standard information and security program and procedures to help ensure the protection of Personal Data.
6.2 Audits. Upon your written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Terms, ArborXR will make available to you a copy of our then-current third-party audit or certification (“Audit Report”), as applicable, unless you are a competitor of ArborXR. ArborXR shall cooperate for reasonable audits of its policies, procedures, and records with respect to the Processing of Personal Data.
6.2.1 To the extent that the Audit Report does not provide you with all information reasonably necessary to prove ArborXR’s compliance with the obligations set out in this DPA, you shall be entitled to audit whether ArborXR complies with its obligations arising from this DPA. ArborXR shall fully cooperate with such an audit which shall be conducted at your expense and during ArborXR’s regular business hours. You shall provide ArborXR with reasonable advance notice of your intention to perform such an audit and you and ArborXR shall mutually agree on a date on which such an audit will take place, the scope, duration, and evidence requirements of the audit. ArborXR shall make reasonable efforts to remedy the material failures identified by the audit at its own expense within a reasonable time.
6.2.2 Audits are limited to one (1) per year unless (a) ArborXR has experienced a Personal Data Incident (as defined in Section 7 below) within the prior twelve (12) months which has impacted User’s Personal Data or (b) a previous audit conducted at your request has revealed a material noncompliance.
7. Incident Management and Notification
ArborXR maintains security incident management policies and procedures and will notify you without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, Processed by ArborXR or our Sub-processors of which we become aware (a “Personal Data Incident”). ArborXR shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as we deem necessary and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within our reasonable control. The obligations herein shall not apply to incidents that are caused by any User.
8. Return and Deletion of Your Data
9. Authorized Affiliates
9.1 Contractual Relationship. If you are a Customer accepting the Terms, you enter into the DPA on behalf of yourself and, as applicable, in the name and on behalf of your Authorized Affiliates, thereby establishing a separate DPA between ArborXR and each such Authorized Affiliate subject to the provisions of the Terms and this Section 9 and Section 10. Each of your Authorized Affiliates agrees to be bound by the obligations under this DPA and to the Terms. For the avoidance of doubt, an Authorized Affiliate is a party to the DPA and must comply with the terms of the Terms and any violation of the Terms by an Authorized Affiliate shall be deemed a violation by the Customer.
9.2 Communication. Customer shall remain responsible for coordinating all communication with ArborXR related to this DPA and shall make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates, except as otherwise required by applicable Data Protection Laws and Regulations.
9.3 Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following: (a) Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against ArborXR directly by itself, the Parties agree that (i) the Customer that is the contracting party to the Terms shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Terms shall exercise any such rights under this DPA not separately for each of its Authorized Affiliates or individually but in a combined manner for itself and all of its Authorized Affiliates together; and (b) the Parties agree that the Customer is the contracting party to the Terms shall, when carrying out an audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on ArborXR and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in a single audit.
10. Limitation of Liability
Each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and ArborXR, whether in contract, tort or under any other theory of liability, is subject to the Limitation of Liability section of the ArborXR Terms, and any reference in such section to the liability of a Party means the aggregate liability of that Party and all of its Affiliates under the Terms and all DPAs together. For the avoidance of doubt, ArborXR’s total liability for all claims from you, and if you are a Customer, all of your Authorized Affiliates, arising out of or related to the Terms and all DPAs shall apply in the aggregate for all claims under both the Terms and all DPAs established under this DPA, including by you, Customer, and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliates that is a contractual party to any such DPA.
11. European Specific Provisions
11.1 GDPR. ArborXR will Process Personal Data in accordance with the GDPR requirements directly applicable to our provision of Services.
11.2 Data Protection Impact Assessment. Upon your request, ArborXR shall provide you with commercially reasonable cooperation and assistance needed to fulfil any obligation you may have under the GDPR to carry out a data protection impact assessment related to your use of the Services, to the extent you do not otherwise have access to the relevant information, and to the extent such information is available to us.
11.3 Transfer Mechanisms for Data Transfers. ArborXR uses the Standard Contractual Clauses set forth in Schedule 1 to this DPA as the transfer mechanism that apply to transfers of Personal Data from the EU, the EEA and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations.
12. Legal Effect
This DPA shall only become legally binding between you and ArborXR subject to acceptance of the ArborXR Terms.
STANDARD CONTRACTUAL CLAUSES
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The data exporting organization identified as “you” or “Customer” in the DPA
(the data exporter)
ABXR Labs, Inc. d/b/a ArborXR, 3750 West Main Street, Suite AA, Norman, OK 73072 USA
(the data importer)
each a “party”; together “the parties”
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. 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:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 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):