Data Processing Addendum

This Data Processing Addendum ("Addendum") forms part of the Services Agreement ("Principal Agreement") between the Program Participant and the Company acting on its own behalf or on behalf of one of several of the Company Affiliates, where applicable.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.

The present Addendum aims at defining the parties’ agreement with regard to the Processing of Personal Data.

Definitions

  1. In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
    1. "Applicable Laws" means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
    2. "Company Affiliate" means any and/or all entities which are directly or indirectly through one or more intermediaries controlled by or under common control or ownership with Gattyan Group S.à r.l. For such purposes, the term "control" (including the terms "controlling", "controlled by" and "under common control with") shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any entity whether through the ownership of a majority of voting rights, by contract or otherwise (the "Docler Group");
    3. "Company Group Member" means Company or any Company Affiliate part of the Docler Group;
    4. "Company Personal Data" means any Personal Data Processed by Program Participant or its Subprocessor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
    5. "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
    6. "EEA" means the European Economic Area;
    7. "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR, together with any associated regulations, instruments, and codes of practice;
    8. "GDPR" means EU General Data Protection Regulation 2016/679;
    9. "Restricted Transfer" means:
      1. a transfer of Company Personal Data from any Company Group Member to the Program Participant; or
      2. an onward transfer of Company Personal Data from Program Participant to a Subprocessor, or between two establishments of Program Participant,
      3. in each case, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses to be established under section 11 below. For the avoidance of doubt:

        (a) without limitation to the generality of the foregoing, the parties to this Addendum intend that transfers of Company Personal Data from the UK to the EEA or from the EEA to the UK, following any exit by the UK from the European Union shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by Data Protection Laws of the UK or EU Data Protection Laws (as the case may be) in the absence of the Standard Contractual Clauses to be established under section 11; and

        (b) where a transfer of Company Personal Data is of a type authorised by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;

    10. "Services" means the services and other activities to be supplied to or carried out by or on behalf of Program Participant for Company or Company Group Members pursuant to the Principal Agreement;
    11. "Standard Contractual Clauses" means the decision 2010/87/EU governing the data transfer between an EU controller to a non-EU or EEA processor and any subsequent amendments and provided in Appendix 3.
    12. "Subprocessor" means any person (including any third party or any Program Participant affiliate, but excluding an employee of Program Participant) appointed by or on behalf of Program Participant to Process Personal Data on behalf of Company or any Company Group Member in connection with the Principal Agreement; and
  2. The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing", “Processor” and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
  3. The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

Processing of Company Personal Data

  1. The Parties acknowledge and agree that with regard to the Processing of Company Personal Data, Company or another Company Group Member, where applicable, is the Data Controller and Program Participant is the Data Processor.
  2. Program Participant shall:
    1. comply with all applicable Data Protection Laws in the Processing of Company Personal Data;
    2. process Company Personal data only for the purposes defined in Appendix 1;
    3. process Company Personal Data only on behalf and in accordance with the Company Group Member’s documented instructions, including with regard to transfers of Company Personal Data to a third country, unless Processing is required by Applicable Laws to which the Program Participant is subject; in such case, Program Participant shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of the Company Personal Data;
    4. where applicable, maintain a record of Processing activities relating to Company Personal Data done on behalf of the relevant Company Group Member and which contains the information listed by article 30(2) of the GDPR;
    5. ensure the confidentiality of the Company Personal Data processed under the Principal Agreement and the present Addendum.
  3. The Company Group Member’s instructions for the Processing of Personal Data shall comply with Applicable Laws. The Company Group Member warrants and represents, where applicable, that it is and will at all relevant times remain duly and effectively authorised to give the instructions set out in section 2.2.3 on behalf of each relevant Company Affiliate.
  4. The subject-matter, duration, nature and purpose(s) of the Processing, the type of Company Personal Data and categories of Data Subjects processed, under this Addendum are specified in Appendix 1, as required by article 28(3) of the GDPR. Any Company Group Member may make reasonable amendments to Appendix 1 by written notice to Program Participant from time to time as Company Group Member reasonably considers necessary to meet those requirements.

Program Participant

  1. Program Participant shall take reasonable steps to ensure the reliability of any employee or agent, where applicable, who may have access to the Company Personal Data.
  2. Program Participant shall ensure that access to Company Personal Data is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement and the present Addendum, or to comply with Applicable Laws.
  3. Program Participant shall ensure that all such individuals engaged in the Processing of Company Personal Data are informed of the confidential nature of the Company Personal Data, have received the appropriate training on their responsibility, and are subject to appropriate confidentiality undertakings or professional or statutory obligations of confidentiality.

Security

  1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Program Participant shall in relation to the Company Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR,
    and as provided in Appendix 2.
  2. Program Participant undertakes not to materially decrease the overall security of the Processing activities during the term of the Principal Agreement and the present Addendum.

Subprocessing

  1. Program Participant shall give Company prior written notice via email to dataprocessor@doclerholding.com of the appointment of any Subprocessor, including full details of the Processing to be undertaken by the Subprocessor, the identity and contact details of the Subprocessor, and the contemplated dates of the subprocessing agreement. If, within fourteen (14) days of receipt of that notice, Company or any Company Affiliate notifies Program Participant in writing of any objections (on reasonable grounds) to the proposed appointment:
    1. Program Participant shall work with Company in good faith to make available a commercially reasonable change in its program participation which (i) addresses the objections raised by Company or (ii) avoids the use of that proposed Subprocessor; and
    2. where such change cannot be made within fourteen (14) days from Program Participant's receipt of Company's objections, notwithstanding anything in the Principal Agreement, Company may, at its own discretion, by written notice to Program Participant with immediate effect terminate the Principal Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor.
    3. Program Participant shall not appoint the proposed Subprocessor, until the written objections raised by Company or Company Affiliate have been resolved.
  2. With respect to each Subprocessor, Program Participant shall:
    1. before the Subprocessor first processes Company Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for the Company Personal Data as required by the Principal Agreement and/or this Addendum;
    2. ensure that the arrangement between on the one hand (a) Program Participant, and on the other hand the Subprocessor, is governed by a written contract including terms which offers at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
    3. if that arrangement involves a Restricted Transfer, before the Subprocessor first processes Company Personal Data, ensure that (i) Subprocessor or (ii) Program Participant on behalf of Subprocessor, on one hand, and the relevant Company Group Member(s), on the other hand, enter into an agreement incorporating the Standard Contractual Clauses, where applicable; and

Data Subject Rights

  1. Taking into account the nature of the Processing, Program Participant shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members' obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
  2. Program Participant shall:
    1. promptly notify Company if Program Participant receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data at DSR@doclerholding.com; and
    2. not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Program Participant is subject, in which case Program Participant shall to the extent permitted by Applicable Laws inform Company of that legal requirement before Program Participant responds to the request.

Personal Data Breach

  1. Program Participant shall notify the Company without undue delay, and in any case not later than twenty-four (24) hours, via email to databreach@doclerholding.com, upon becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws. Such notification shall as a minimum:
    1. describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
    2. communicate the name and contact details of the Program Participant 's data protection officer, if applicable, or other relevant contact from whom more information may be obtained;
    3. describe the likely consequences of the Personal Data Breach; and
    4. describe the measures taken or proposed to be taken to address the Personal Data Breach.
  2. Program Participant shall co-operate with the Company and each Company Group Member and take such reasonable steps as are directed by Company or each Company Group Member to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

Data Protection Impact Assessment and Prior Consultation

Program Participant shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to Program Participant.

Deletion or return of Personal Data

Program Participant shall within thirty (30) days of the date of cessation of any Program(s) participation involving the processing of Personal Data (the "Cessation Date") delete all Personal Data processed.

Audit rights

Program Participant shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Personal Data.

Restricted Transfers

  1. Subject to section 11.3, each Company Group Member (as "data exporter") and each Program Participant, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer.
  2. The Standard Contractual Clauses shall come into effect under section 11.1 on the later of:
    1. the data exporter becoming a party to them;
    2. the data importer becoming a party to them; and
    3. commencement of the relevant Restricted Transfer.
  3. Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
  4. Program Participant warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor, (i) the relevant Subprocessor enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s), or (ii) Program Participant enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s) under section 11.1, as agent for and on behalf of that Subprocessor, such entry having been duly and effectively authorised (or subsequently ratified) by that Subprocessor.

Indemnity

  1. Program Participant will fully indemnify and hold harmless any Company Group Member, as well as their officers, directors, shareholders, agents, and employees from any liabilities, losses, damages, costs (including, without limitation, attorney’s fees), expenses or fine (including, without limitation, any administrative fine as imposed by any Supervisory Authority), as suffered or incurred by any Company Group Member and resulting from:
    1. any breach by the Program Participant or Subprocessor, if applicable, of any provision of the Principal Agreement relating to the Processing of Company Personal Data or of this Addendum occasioned by an act or omission of the Program Participant or Subprocessor or of one of its employees, agents or contractors;
    2. non-compliance by the Program Participant or Subprocessor with the provisions of the Applicable Laws.

General Terms

    Governing law and jurisdiction

  1. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
    1. the parties to this Addendum hereby submit to the courts of Luxembourg, Grand Duchy of Luxembourg, with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
    2. this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the Grand Duchy of Luxembourg.
  2. Order of precedence

  3. Nothing in this Addendum reduces Program Participant’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Program Participant to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
  4. Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and agreements entered into or purported to be entered into after the date of this Addendum (except where explicitly agreed otherwise in writing, signed on behalf of the parties), the provisions of this Addendum shall prevail.
  5. Changes in Data Protection Laws, etc.

  6. Company may implemented any amendments to this Addendum which Company reasonably considers to be necessary to address the requirements or changes of any Data Protection Law or the services provided by Company
  7. To the extent permitted by applicable law, such amendments will be applicable from the time they are published on the awempire.com website, unless a date of entry into force is specified. The continued use by Program Participant of awempire.com and its continued participation to the Programs from that day on will be subject to the amended Addendum.
  8. Severance

  9. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.

APPENDIX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

Subject matter and duration of the Processing of Company Personal Data

The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.

The nature and purpose of the Processing of Company Personal Data

Setup, maintain and optimize Program Participant’s marketing campaigns or promotional activities.

The types of Company Personal Data to be Processed

  • Website Members
    • registration date
    • website of registration or sale
    • country
    • username
    • amount of credits bought (in case the Webmaster was eligible for the commission)
    • the referrer site where the user came from
    • the site register or purchase credits
    • device information
  • Models
    • Username
    • Online status (free chat, private chat, offline)
    • Ethnicity
    • Category
    • Country
    • Banned country/ countries
    • Direct link to your chatroom
    • Model rating
    • Pay per minute price
    • Stream quality
    • Biography/ turn ons/ turn offs (available on the public profile page)
    • Languages
    • Willingness list
    • Gender
    • Age
    • Sexual preference(s)
    • Physical characteristics

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

  • Website Members
  • Models

The obligations and rights of Company and Company Affiliates

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

APPENDIX 2: TECHNICAL AND ORGANISATIONAL SECURITY MEASURES

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

Company reserves the right to request the list of technical and organizational measures implemented to Program Participant.

Company shall also have the right to require the implementation by Program Participant of additional technical and organizational measures, in case Company considers that the measures in place are not sufficient to cover the risks.

APPENDIX 3: 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

Name of the data exporting organisation:

Duodecad IT Services Luxembourg S.à r.l.
Address: 44 Avenue John F. Kennedy, 1855 Luxembourg, Grand Duchy of Luxembourg
Tel.: + 352 26 11 18 22
E-mail: dataprocessor@doclerholding.com

(the data exporter)

And
The Program Participant

(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.

Definitions

For the purposes of the Clauses:
  1. '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;
  2. 'the data exporter' means the controller who transfers the personal data;
  3. '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;
  4. '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;
  5. '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;
  6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

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 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.
  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

For the purposes of the Clauses:
  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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;
  9. 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
  10. that it will ensure compliance with Clause 4(a) to (i).

Obligations of the data importer

The data importer agrees and warrants:
  1. 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;
  2. 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;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. 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,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. 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;
  6. 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;
  7. 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;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

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

  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 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.

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. 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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer 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).

Governing Law

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.

Subprocessing

  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 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.
  2. 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.
  3. 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.
  4. 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.

Obligation after the termination of personal data processing services

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