This Data Protection Addendum ("DPA”) forms part of the Flock Customer Agreement including its appendices (“Master Agreement”) and is subject to the terms and conditions of the Master Agreement. Terms not defined herein shall have the meaning set forth in the Master Agreement. In the event of a conflict between the Master Agreement and this DPA, pertaining to the provisions mentioned herein below, the provisions mentioned in this DPA shall prevail.
This DPA to the Master Agreement including its appendices will, as from the amendment Effective Date (as defined below), be effective and replace any previously applicable data privacy provisions or any terms previously applicable to privacy, data processing and/or data security.
Except as modified below, the terms of the Master 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 Master Agreement. Except where the context requires otherwise, references in this Addendum to the Master Agreement are to the Master Agreement as amended by, and including, this Addendum.
This DPA reflects the parties’ agreement with respect to the terms governing the processing and security of Customer Personal Data under the applicable Master Agreement.
2.1. Capitalized terms used but not defined in this DPA have the meanings given elsewhere in the applicable Master Agreement. In this DPA, unless stated otherwise:
"Addendum Effective Date” means, as applicable:
(a) 25 May 2018, if Customer clicked to accept or the parties otherwise agreed to this Data Privacy Addendum in respect of the applicable Agreement prior to or on such date; or
(b) the date on which Customer clicked to accept or the parties otherwise agreed to this Data Privacy Addendum in respect of the applicable Agreement, if such date is after 25 May 2018.
“Customer Data” means data submitted, stored, sent or received via the Services by Customer, its Affiliates or End Users.
“Customer Personal Data” means personal data contained within the Customer Data and as otherwise defined in Data Privacy Laws.
"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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
“Security Incident” means a breach of data security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by the Company. “Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
“Information Security Obligations” means commercially reasonable and appropriate physical, technical and organisational security measures, including those set forth in the Agreement, along with its Schedules and Appendix 2 to the Standard Contractual Clauses of Appendix 2.
“Model Contract Clauses” means the standard data protection clauses set out in Annexure 2 for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Non-European Data Protection Legislation” means data protection or privacy legislation other than the European Data Protection Legislation.
"Personal Data" means any information relating to an identified or identifiable natural person (or, to the extent that Data Privacy Laws apply to information about legal persons, an identified or identifiable legal person) or as otherwise defined in Data Privacy Laws.
“Process” means any operation, or set of operations, which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, access to, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. "Processes" and “Processing” shall be construed accordingly. Processing includes sub-Processing.
“Sub-processors” means third parties authorized under this DPA to have logical access to and process Customer Data in order to provide parts of the Services and related technical support.
“Term” means the period from the Addendum Effective Date until the end of Company’s provision of the Services under the applicable Master Agreement, including, if applicable, any period during which provision of the Services may be suspended and any post-termination period during which the Company may continue providing the Services for transitional purposes.
2.2. The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
3. Duration of DPA
This DPA will take effect on the Effective Date and, notwithstanding expiry of the Term, remain in effect until, and automatically expire upon, deletion of all Customer Data by Company as described in this DPA.
4. Scope of Data Protection Legislation
4.1. Application of European Legislation
The parties acknowledge and agree that the European Data Protection Legislation will apply to the processing of Customer Personal Data if, for example:
(a) the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA; and/or
(b) the Customer Personal Data is personal data relating to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
4.2. Application of Non-European Legislation
The parties acknowledge and agree that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.
4.3. Application of DPA
Except to the extent this DPA states otherwise, the terms of this DPA will apply irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies to the processing of Customer Personal Data.
5. Processing of Data
5.1. Roles and Regulatory Compliance; Authorization
5.1.1. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Company is the Processor.
5.1.2. Controller and Processor Responsibilities
In the event the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
(a) the subject matter and details of the processing are described in Annexure 1 to this DPA;
(b) each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
5.1.3. Processing of Customer's Personal Data
Company shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
5.1.4. Responsibilities under Non-European Legislation
If Non-European Data Protection Legislation applies to either party’s processing of Customer Personal Data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that Customer Personal Data.
5.2. Scope of Processing
5.2.1. Customer’s Instructions
By entering into this DPA, Customer instructs the Company to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services and related technical support; (b) as further specified via Customer’s use of the Services (including various functionality of the Services) and related technical support; (c) as documented in the form of the applicable Master Agreement, including this DPA; and (d) as further documented in any other written instructions given by Customer and acknowledged by Company as constituting instructions for purposes of this DPA.
5.2.2. Company’s Compliance with Instructions
Company will comply with the Customer’s Instructions (including with regard to data transfers) as specified under Clause 5.2.1.
6. Data Deletion
6.1. Deletion During Term
Company will enable Customer and/or End Users to delete Customer Data during the applicable Term in a manner consistent with the functionality of the Services. If Customer or an End User uses the Services to delete any Customer Data during the applicable Term and the Customer Data cannot be recovered by Customer or an End User, this will be deemed to constitute an instruction to Company to delete the relevant Customer Data from its systems in accordance with applicable law. Company will comply with this instruction as soon as reasonably practicable and within a maximum period of 30 days, unless EU or EU Member State law requires storage for a longer period.
6.2. Deletion on Term Expiry
Subject to Clause 6.3 (Deferred Deletion Instruction) below, on expiry of the applicable Term Customer instructs Company to delete all Customer Data (including existing copies) from Company’s systems in accordance with applicable law. Company will comply with this instruction as soon as reasonably practicable and within a maximum period of 30 days, unless EU or EU Member State law requires storage for a longer period. Without prejudice to Section 9.1 (Access; Rectification; Restricted Processing; Portability), Customer acknowledges and agrees that Customer will be responsible for exporting, before the applicable Term expires, any Customer Data it wishes to retain post deletion.
6.3. Deferred Deletion Instruction
To the extent any Customer Data covered by the deletion instruction described in Section 6.2 (Deletion on Term Expiry) is also processed, when the applicable Term under Section 6.2 expires, in relation to an Agreement with an extended Term, such deletion instruction will only take effect with respect to such Customer Data when the extended Term expires. For clarity, this DPA will continue to apply to such Customer Data until its deletion by the Company.
7. Data Security
7.1. Company’s Security Measures, Controls and Assistance
7.1.1. Company’s Security Measures
Company will implement and maintain adequate technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the “Security Measures”). As described in Appendix 2, the Security Measures include measures to protect and encrypt personal data; to help ensure ongoing confidentiality, integrity and availability of Company’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness. Company may update or modify the Security Measures from time to time.
7.1.2. Security Compliance by Company Personnel
Company will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Sub-processors to the extent applicable to their scope of performance under the applicable Master Agreement. The Company also agrees to ensure that all persons authorized to process Customer Personal Data have committed themselves to confidentiality and have executed appropriate documentation to maintain confidentiality.
7.1.3. Additional Controls
In addition to the Security Measures, Company will make Additional Controls available to: (a) allow Customer to take steps to secure Customer Data; and (b) provide Customer with information about securing, accessing and using Customer Data. Further, Company will (taking into account the nature of the processing of Customer Personal Data and the information available to Company) assist Customer in ensuring compliance with any of Customer’s obligations in respect to security of personal data and data breaches.
7.2. Data Security Incidents
7.2.1. Incident Notification
If Company becomes aware of a Data Incident, Company will: (a) notify Customer of the Data Incident promptly and without undue delay; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.
7.2.2. Details of Data Incident
Data Incident Notifications will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps Company recommends Customer take to address the Data Incident.
7.2.3. Delivery of Notification
Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at Company’s discretion, by direct communication (for example, by phone call). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.
7.2.4. No Acknowledgment of Fault by Company
Company’s notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by Company of any fault or liability with respect to the Data Incident.
7.3. Customer’s Security Responsibilities and Assessment
7.3.1. Customer’s Security Responsibilities
Customer agrees that, without prejudice to Company’s obligations under Section 7.1 (Company’s Security Measures and Controls) and Section 7.2 (Data Incidents):
(a) Customer is solely responsible for its use of the Services, including:
(i) making appropriate use of the Services and the Additional Controls to ensure a level of security appropriate to the risk in respect of the Customer Data;
(ii) securing the account authentication credentials, systems and devices Customer uses to access the Services; and
(iii) backing up its Customer Data; and
(b) Company has no obligation to protect Customer Data that Customer elects to store or transfer outside of Company’s and its Sub-processors’ systems.
7.3.2. Customer’s Security Assessment
(a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures, the Additional Controls and Company’s commitments under this Section 7 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation and/or Non-European Data Protection Legislation, as applicable.
(b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Company as set out in Section 7.1.1 (Company’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
7.4. Security Certifications and Reports
Company will update the SOC 2 Report at least once every 18 months to evaluate and help ensure the continued effectiveness of the Security Measures.
7.5. Reviews and Audits of Compliance
7.5.1. Reviews of Security Documentation
In addition to the information contained in the applicable Service Agreement including this DPA, Company will make available for review by Company the then-current SOC 2 Report, following a request by Company in accordance with Section 7.5.3(a). to demonstrate compliance by Provider with its obligations under this DPA.
7.5.2. Customer’s Audit Rights
(a) If the European Data Protection Legislation applies to the processing of Customer Personal Data, Company will allow Customer or an independent auditor appointed by Customer to conduct audits (including inspections) to verify Company’s compliance with its obligations under this DPA and the data shared by the customer under this DPA. Company will contribute to such audits as described in Section 7.4 (Security Certifications and Reports) and this Section 7.5 (Reviews and Audits of Compliance).
(b) If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), Company will, without prejudice to any audit rights of a supervisory authority under such Model Contract Clauses, allow Customer or an independent auditor appointed by Customer to conduct audits as described in the Model Contract Clauses.
(c) Customer may also conduct an audit to verify Company’s compliance with its obligations under this DPA by reviewing the Security Documentation (which reflects the outcome of audits conducted by Company’s Third Party Auditor).
(d) The scope of the audit or inspection shall include only Customer Personal Data and shall be conducted solely to verify Company’s compliance with its obligations under this DPA.
8. Impact Assessments and Consultations
Customer agrees that Company will (taking into account the nature of the processing and the information available to Company) assist Customer in ensuring compliance with any obligations of Customer in respect of data protection impact assessments and prior consultation, including if applicable Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
(a) providing the Additional Controls in accordance with Section 7.1.3 (Additional Controls) and the Security Documentation in accordance with Section 7.5.1 (Reviews of Security Documentation); and
(b) providing the information contained in the applicable Master Agreement including this DPA.
9. Data Subject Rights; Data Export
9.1. Access; Rectification; Restricted Processing; Portability
During the applicable Term, Company will, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Data, and to export Customer Data.
9.2. Data Subject Requests
9.2.1. Customer’s Responsibility for Requests
During the applicable Term, if Company receives any request from a data subject in relation to Customer Personal Data, Company will advise the data subject to submit his/her request to Customer, and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services.
9.2.2. Company’s Data Subject Request Assistance
Customer agrees that (taking into account the nature of the processing of Customer Personal Data) Company will assist Customer in fulfilling any obligation to respond to requests by data subjects, including if applicable Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR, by:
(a) providing the Additional Controls in accordance with Section 7.1.3 (Additional Controls); and
(b) complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer’s Responsibility for Requests).
10. Data Transfers
10.1. Data Storage and Processing Facilities
Customer agrees that Company may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process Customer Data countries in which Company or any of its Sub-processors maintains facilities.
10.2. Transfers of Data Out of the EEA
10.2.1. Company’s Transfer Obligations
If the storage and/or processing of Customer Personal Data (as set out in Section 10.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA and the European Data Protection Legislation applies to the transfers of such data, Company will if requested to do so by Customer, ensure that Company as the data importer of the transferred Personal Data enters into Model Contract Clauses with Customer as the data exporter of such data, and that the transfers are made in accordance with such Model Contract Clauses as set out as Annexure II herewith.
10.2.2 Customer’s Transfer Obligations
In respect of transferred Personal Data, Customer agrees that if under the European Data Protection Legislation Company reasonably requires Customer to enter into Model Contract Clauses in respect of such transfers, Customer will do so.
10.3. Data Center Information
Information about the locations of Company data centers is available in the List of Sub-processors (as may be updated by Company from time to time).
10.4. Disclosure of Confidential Information Containing Personal Data
If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), Company will, notwithstanding any term to the contrary in the applicable Master Agreement, ensure that any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
The Customer hereby explicitly approves the engagement of the Sub-processors listed here. Company will notify Customer of any changes to Sub-processors and accordingly update the list on its website. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the web site, or by electronic or conventional mail, or by any other means by which Customer obtains notice thereof. Any use of Services by Customer after such notice shall be deemed to constitute acceptance by Customer of such changes, modifications, additions or deletions.
Company shall impose the same data protection obligations as set out in this DPA on any Sub-processor prior to the Sub-processor Processing any Customer Personal Data, and ensure that the relevant obligations (including but not limited to the information and audit rights provided under this DPA. Company remains responsible for its Sub-processors and liable for their acts and omissions as for its own acts and omissions and any references to Company’s obligations, acts and omissions in this DPA shall be construed as referring also to the Company’s Sub-processors.
11.2. Information about Sub-processors
Information about Sub-processors, including their roles and locations, is available in the List of Sub-processors (as may be updated by Company from time to time in accordance with this DPA).
11.3. Requirements for Sub-Processor Engagement. When engaging any Sub-processor, Company will:
(a) ensure via a written contract that:
(i) the Sub-processor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the applicable Master Agreement (including this DPA) and any Model Contract Clauses entered into by Company as described in Section 10.2 (Transfers of Data Out of the EEA); and
(ii) if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in this Data Processing Amendment, are imposed on the Sub-processor; and
(b) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Sub-processor.
12. Tracking Technologies
13. General Terms
13.1. Governing law and jurisdiction
Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1. the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Master Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2. this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Master Agreement.
13.2. Changes in Data Protection Laws
13.2.1. Company may propose any other variations to this DPA which Company reasonably considers to be necessary to address the requirements of any change in the Data Protection Law.
DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
- Customers and their users may enter/upload personal data on Flock based on how the team has been set up by team administrator. The product requires users to provide contact information. In addition to this, the customers and / or users may provide other personal data including, data related to their employment, location, age, background, and ethnicity.
- Processing of data will be as per the provisions under this DPA and to meet Company’s obligation to provide services to the Customer and for no other purpose.
- The duration of the processing of Personal Data will only be: until the (i) termination or expiry of the Master Agreement, or (ii) until the processing is no longer necessary for the purposes of either party performing its obligations under the Master Agreement (to the extent applicable), whichever is earlier;
- Personal Data will be processed to provide Services to the customer;
- Personal data may be collected from the following:
- Customers, Potential customers, referrals and business partners;
- Employees or contact persons of the Customer’s sub-processors, business partners, and vendors (who are natural persons);
- Employees, agents, advisors, and freelancers of the Customer; and/or
- Any other persons authorized by the Customer to use the Services.
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organization: __________________
Customer which has agreed to this Standard Contractual Clauses as data exporter on behalf of its affiliates or their respective clients and client affiliates in the European Economic Area and Switzerland
(the data exporter)
Company which has agreed to this Standard Contractual Clauses as a data importer
(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.
Clause 1 - Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' 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 organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2 - Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3 - Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the 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.
Clause 4 - Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(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).
Clause 5 - Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which 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.
Clause 6 - Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or 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.
Clause 7 - Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
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.
Clause 8 - Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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).
Clause 9 - Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10 - Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business-related issues where required as long as they do not contradict the Clause.
Clause 11 - Sub-processing
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 fulfill 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.
Clause 12 - Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the 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.
Clause 13 - Liability
The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred. Indemnification is contingent upon:
(a) the data exporter promptly notifying the data importer of a claim; and
(b) the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
The data exporter is a) the customer of Riva who has created a team on Flock; b) all users authorized by the customer.
The data importer is Riva which processes Personal Data upon the instruction of the data exporter in accordance with the terms of the agreement between the data exporter and Riva.
The personal data transferred concern the following categories of data subjects:
Individuals who have a relationship with the Data exporter or the Client Data Exporter and may include the personal data of employees, customers, contractors or others. They will also include users, vendors and other third parties authorized by the data exporter
Categories of data
The personal data transferred concern the following categories of data:
- Name and Contact Information
- Messaging, files, text, images, comments, links, user profile information
Special categories of data (if appropriate)
Special categories of data may be transferred by the data exporter through Flock Suite, however this is controlled by the data exporter. The data exporter defines the nature and extent of special categories of data transferred and ensures compliance with applicable laws while transferring this data to the data importer.
The personal data transferred will be subject processing activities as per the requirements of the master agreement and maybe subject to storage and other processing necessary to provide, maintain and improve the Services provided to the Data Exporter;
provide customer care services and technical support to the Data Exporter;
Disclosure of information to any third party will be in accordance with the Agreement and as per applicable laws.
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):
Data importer will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Personal Data uploaded to the Flock, as described in and accessible via https://flock.com/security or otherwise made reasonably available by data importer.