Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the Master Subscription Agreement (the “MSA”) entered into by Channeltivity, LLC, as the Processor, and the “Customer” under the MSA, acting on its own behalf and as agent for each Company Affiliate, as the Controller.

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 MSA, or, when not defined in the MSA, the meaning given to them under the GDPR.  Except as modified below, the terms of the MSA 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 MSA. Except where the context requires otherwise, references in this Addendum to the MSA are to the MSA as amended by, and including, this Addendum.

1.              Definitions

1.1           In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1               “Channeltivity” means Channeltivity, LLC.

1.1.2               “Company” means the Company described in the Order Form submitted by such Company to Channeltivity and referred to in the MSA as the “Customer.”

1.1.3               “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.1.4               “Company Group Member” means Company or any Company Affiliate;

1.1.5               “Contracted Processor” means Channeltivity or a Subprocessor;

1.1.6               Controller” means the entity which determines the purpose and means of the Processing of Personal Data.

1.1.7               “Data Protection Laws” means all data protection and privacy laws and regulations, including laws and regulations of the EU, the EEA and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the MSA;

1.1.8               “Data Subject” means the identified or identifiable person to whom Personal Data relates.

1.1.9               “EEA” means the European Economic Area;

1.1.10            “EU” means European Union;

1.1.11            “GDPR” means EU General Data Protection Regulation 2016/679 approved by the EU Parliament in April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data.

1.1.12            “Personal Data” means any information relating to an identified or identifiable natural person.

1.1.13            “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed.

1.1.14            “Processing” or “Processed” means any operation or set of operations which is performed on 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.

1.1.15            “Processor” means the entity which Processes Personal Data on behalf of the Controller.

1.1.16            “Restricted Transfer” means:

1.1.16.1        a transfer of Personal Data from any Company Group Member to a Contracted Processor; or

1.1.16.2        an onward transfer of Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 12 below;

1.1.16.3        For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this Addendum intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following the exit by the UK from the EU shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by Data Protection Laws of the UK in the absence of the Standard Contractual Clauses to be established under section 12; and (b) where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from within the EU 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;

1.1.17            “Services” means the services and other activities to be supplied to or carried out by or on behalf of Channeltivity for Company Group Members pursuant to the MSA;

1.1.18            “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 13.4;

1.1.19            “Subprocessor” means any person (including any third party, but excluding an employee of Channeltivity or any of its sub-contractors) appointed by or on behalf of Channeltivity to Process Personal Data on behalf of any Company Group Member in connection with the MSA;

1.1.20            “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR; and

1.2           The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

2.              Limitation on Liability

2.1           Channeltivity’s, Company’s, and all Company Affiliates’ liability, taken together in the aggregate, arising out of or related to this Addendum, whether in contract, tort or under any other theory of liability, is subject to any and all limitations on liability set forth in the MSA, and any reference in the MSA to the liability of a party means the aggregate liability of that party and all of its Affiliates under the MSA and this Addendum together.

2.2           For the avoidance of doubt, Channeltivity’s total liability for all claims from the Company Group Members arising out of or related to the MSA and this Addendum shall apply in the aggregate for all claims under both the MSA and the Addendum and, in particular, shall not be understood to apply individually or severally to Company and/or to any Company Affiliate.

3.              Processing of Personal Data

3.1           Channeltivity shall not Process Personal Data other than on the relevant Company Group Member’s documented instructions unless Processing is required by the Data Protection Laws to which the relevant Contracted Processor is subject, in which case Channeltivity shall to the extent permitted by Data Protection Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.

3.2           Each Company Group Member:

3.2.1               instructs Channeltivity (and authorizes Channeltivity to instruct each Subprocessor) to:

3.2.1.1           Process Personal Data; and

3.2.1.2           in particular, transfer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the MSA; and

3.2.2               warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 3.2.1 on behalf of each relevant Company Affiliate;

3.2.3               warrants and represents that it will maintain compliance with all Data Protection Laws; and

3.2.4               warrants and represents that it does not and will not Process, or cause the Processing of, high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records in relation to the Services.

3.3           Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Personal Data as required by Article 28(3) of the GDPR. Company may make reasonable amendments to Annex 1 by written notice to Channeltivity from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.

4.              Channeltivity Personnel

Channeltivity shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the MSA, and to comply with Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

5.              Security

5.1           Channeltivity’s technical and administrative safeguards for the protection of the security, confidentiality and integrity of Personal Data are set out in Appendix 2 of the Standard Contractual Clauses included herein as Annex 2.

5.2           In assessing the appropriate level of security, Channeltivity and the Company Group shall take account the risks that are presented by Processing, in particular from a Personal Data Breach.  The parties acknowledge that such assessment relies, in large part, on the information provided in Annex 1 and Appendix 1 of the Standard Contractual Clauses, including without limitation, the Company’s agreement that no special categories of personal data and no high risk personal data will be submitted for Processing.

6.              Subprocessing

6.1           Each Company Group Member authorizes Channeltivity to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the MSA.

6.2           Channeltivity may continue to use those Subprocessors already engaged by Channeltivity as at the date of this Addendum, subject to Channeltivity in each case as soon as practicable meeting the obligations set out in section 6.4.

6.3           Channeltivity shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within seven (7) days of receipt of that notice, Company notifies Channeltivity in writing of any objections (on reasonable grounds) to the proposed appointment, then Channeltivity shall not appoint (nor disclose any Personal Data to) the proposed Subprocessor except with the prior written consent of Company.

6.4           With respect to each Subprocessor, Channeltivity shall:

6.4.1               before the Subprocessor first Processes Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by the MSA;

6.4.2               ensure that the arrangement between on the one hand (a) Channeltivity or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this Addendum and meet the requirements of Article 28(3) of the GDPR; and

6.4.3               provide to Company for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.

6.5           Channeltivity shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5.1, 5.2, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Channeltivity.

7.              Data Subject Rights

7.1           To the extent Company, in its use or receipt of the Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws, Channeltivity shall comply with any commercially reasonable request by Company to facilitate such actions to the extent Channeltivity is legally permitted to do so.

7.2           Channeltivity shall:

7.2.1               promptly notify Company if any Contracted Processor receives a request from a Data Subject for access to, correction, amendment or deletion of that person’s Personal Data; and

7.2.2               ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Data Protection Laws to which the Contracted Processor is subject, in which case Channeltivity shall, to the extent permitted by Data Protection Laws, inform Company of that legal requirement before the Contracted Processor responds to the request.

7.3           Company acknowledges and agrees that services provided by a Contracted Processor to a Company Group Member pursuant to this section 7 may be subject to additional fees.

8.              Personal Data Breach

8.1           Channeltivity shall notify Company without undue delay after becoming aware of a Personal Data Breach affecting Personal Data.  Such notification shall at a minimum:

8.1.1               Describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories of Personal Data records concerned; and

8.1.2               Provide the name and contact information of Channeltivity’s data protection officer or other relevant contact from whom more information may be obtained.

8.2           Channeltivity shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach and as reasonably necessary to assist the Company in fulfilling the Company Group Member’s reporting obligations under Articles 33 and 34 of the GDPR.

9.              Data Protection Impact Assessment and Prior Consultation

Upon a Company Group Member’s request, Channeltivity shall provide such Company Group Member with reasonable cooperation and assistance needed to fulfill the Company Group Member’s obligation under Article 35 of the GDPR to carry out a data protection impact assessments related to the Company Group Member’s use of the Services, to the extent the Company Group Member does not have access to the relevant information, and to the extent such information is available to Channeltivity.  Channeltivity shall assist a Company Group Member in the cooperation or prior consultation with the Supervisory Authority as reasonably necessary to fulfill the Company Group Member’s obligation under Article 36 of the GDPR.  Company acknowledges and agrees that services provided by a Contracted Processor to a Company Group Member pursuant to this section 9 may be subject to additional fees.

10.           Deletion or return of Personal Data

10.1        Subject to section 10.3, Company may in its absolute discretion by written notice to Channeltivity, within thirty (30) days of the date of cessation of any Services involving the Processing of Personal Data (the “Cessation Date”), require Channeltivity to (a) return a complete copy of all Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Channeltivity; and (b) delete and procure the deletion of all other copies of Personal Data Processed by any Contracted Processor. Channeltivity shall comply with any such written request from Company within sixty (60) days of the Cessation Date.

10.2        Subject to section 10.3, in the event Company does not provide written notice to Channeltivity under section 10.1 within the required thirty days, Channeltivity shall, within sixty (60) days of the Cessation Date, delete and procure the deletion of all copies of Personal Data Processed by any Contracted Processor.

10.3        Each Contracted Processor may retain Personal Data to the extent required by Data Protection Laws and only to the extent and for such period as required by Data Protection Laws and always provided that Channeltivity shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the Data Protection Laws requiring its storage and for no other purpose.

10.4        Company may request Channeltivity provide written certification to Company that it has fully complied with this section 10, in which case such certification must be supplied within ninety (90) days of the Cessation Date.

11.           Audit rights

11.1        Subject to restrictions contained in the MSA, including those contained in this Addendum, Channeltivity 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 auditor selected by any Company Group Member and consented to by Channeltivity (which consent shall not be unreasonably withheld, conditioned or delayed) in relation to the Processing of the Personal Data by the Contracted Processors.

11.2        Information and audit rights of the Company Group Members only arise under section 11.1 to the extent that the MSA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, Article 28(3)(h) of the GDPR).

11.3        Company or the relevant Company Affiliate undertaking an audit shall give Channeltivity reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its selected auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize, and compensate Channeltivity for) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on such premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:

11.3.1            to any individual unless he or she produces reasonable evidence of identity and authority;

11.3.2            outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiilate undertaking an audit has given notice to Channeltivity that this is the case before attendance outside those hours begins; or

11.3.3            for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which a Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,

where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Channeltivity of the audit or inspection.

12.           Restricted Transfers

12.1        Subject to section 12.3, each Company Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.

12.2        The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:

12.2.1            the data exporter becoming a party to them;

12.2.2            the data importer becoming a party to them; and

12.2.3            commencement of the relevant Restricted Transfer.

12.3        Section 12.1 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.

13.           General Terms

Governing law and jurisdiction

13.1        Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:

13.1.1            the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the MSA 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

13.1.2            this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the MSA.

Order of precedence

13.2        Nothing in this Addendum reduces Channeltivity’s obligations under the MSA in relation to the protection of Personal Data or permits Channeltivity to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the MSA. With respect to Restricted Transfers only, in the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

13.3        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 MSA and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.

Changes in Data Protection Laws, etc.

13.4        Company may:

13.4.1            by at least sixty (60) calendar days’ written notice to Channeltivity from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and

13.4.2            propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.

13.5        If Company gives notice under section 13.4.1, Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Channeltivity to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1.

13.6        If Company gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company’s notice as soon as is reasonably practicable.

13.7        Neither Company nor Channeltivity shall require the consent or approval of any Company Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.

Severance

13.8        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.

 

ANNEX 1: DETAILS OF PROCESSING OF PERSONAL DATA

Subject matter and duration of the Processing of Personal Data

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

The nature and purpose of the Processing of Personal Data

Channeltivity will Process Personal Data as necessary to perform the Services pursuant to the MSA, as further specified in the Addendum and instructed by the Company Group Member in use of the Services.

The types of Personal Data to be Processed

A Company Group Member may submit Personal Data to the Services, the extent of which is determined and controlled by Company Group Member, which may include the following types of Personal Data:

  • First and last name
  • Title
  • Position
  •  Employer
  •  Contact information (company, email, phone, physical business address)
  • Professional life data
  • Personal life data
  • Localization data

No high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records may be submitted for Processing.

The categories of Data Subject to whom the Personal Data relates

A Company Group Member may submit Personal Data to the Services, the extent of which is determined and controlled by such Company Group Member, which may include, without limitation, Personal Data relating to the following categories of Data Subjects:

  • Prospects, customers, business partners and vendors of such Company Group Member;
  • Employees or contract persons of such Company Group Member’s prospects, customers, business partners and vendors;
  • Employees, agents, advisors, freelancers of such Company Group Member; and
  • Company Group Member’s users authorized by such Company Group Member to use the Services.

 

The obligations and rights of Company and Company Affiliates

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


ANNEX 2: STANDARD CONTRACTUAL CLAUSES

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.

Data exporting organization: the Company described in the Channeltivity Order Form

……………………………………………………………
And

Data importing organization: Channeltivity, LLC

Address: 1920 Abbott St., Suite 303, Charlotte, NC 28203

Tel.: 877-226-2564; fax: 646-807-4525; e-mail: jjacobs@channeltivity.com

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.

Background

             The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

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 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;

(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.

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 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.

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 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 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;

(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 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;

(i)           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

(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 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 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;

(h)          that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i)           that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j)           to send promptly a copy of any subprocessor 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 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.

  1. 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 itwerethe data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  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.

  1. 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 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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

  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 subprocessingof 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 subprocessingagreements 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 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.

 

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is:  The legal entity that has executed the Standard Contractual Clauses as a Data Exporter and all Company Group Members that are established within the European Economic Area that have purchased Channeltivity Services.

Data importer

The data importer is: Channeltivity, LLC is the provider of a channel management software platform which Processes Personal Data upon the instructions of the data exporter in accordance with the terms of the MSA, including the Addendum.

Data subjects

The personal data transferred concern the following categories of data subjects:  Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by data exporter, which may include, without limitation, Personal Data relating to the following categories of Data Subjects:

  • Prospects, customers, business partners and vendors of such Company Group Member;
  • Employees or contract persons of such Company Group Member’s prospects, customers, business partners and vendors;
  • Employees, agents, advisors, freelancers of such Company Group Member; and
  • Company Group Member’s users authorized by such Company Group Member to use the Services.

Categories of data

The personal data transferred concern the following categories of data:  Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter, which may include the following types of Personal Data:

  • First and last name
  • Title
  • Position
  • Employer
  • Contact information (company, email, phone, physical business address)
  • Professional life data
  • Personal life data
  • Localization data

No high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records may be submitted for Processing.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

No special categories of personal data are to be submitted for processing.  Special categories of personal data are set forth in the General Data Protection Regulation and include Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or a natural person’s sex life or sexual orientation.

Processing operations

The personal data transferred will be subject to the following basic processing activities:  Data importer will Process Personal Data as necessary to perform the Services pursuant to the MSA, as further specified in the Addendum and instructed by the data exporter in use of the Services.

 

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):

Channeltivity will maintain administrative, physical, and technical safeguards for the protection of security, confidentiality and integrity of Personal Data uploaded to the Channeltivity Services, as described in the MSA and Channeltivity’s data security policy.