SUITEFILES LIMITED (‘Supplier’ or ‘We’ or ‘Us’)
Collection of personal information
The personal information may be collected when you:
(a) visit and browse our Site and/or communicate with us via the Site including via chat or to send us an inquiry, ask a question, register for an event and/or subscribe to a newsletter or access content we provide (‘Visit’);
(b) purchase products and services from our Site (‘Purchase’).
Types of personal information
When you Visit our Site or make a Purchase from our Site, you may be providing three different types of personal information to Us:
(a) Anonymous information (from which we cannot identify you): As you browse the Site, information may be collected about your visit, not about you personally. We use these statistics to improve our Site, to monitor performance, and to make it easier for you and other visitors to use the Site.
(b) Information which identifies you – depending on the nature of your Visit, you may be providing us with personal information from which We can identify you. This could include for example your IP address, from which we can recognize you if and when you return to our Site.
(c) Information you voluntarily supply: When you Visit (depending on your activity) and when you Purchase, we collect certain information from you which may include (but is not limited to) your name and email address.
Credit card information
We do not hold your credit card information. Where any credit card processing is required in relation to your Visit or a Purchase from our Site, that credit card processing is performed by either eWay or Stripe depending on the transaction.
Use and disclosure of personal information
The personal information you provide to us through the Site will be used by Us only for the purposes of the Site, to facilitate your Visit and for the purposes of your Purchase (as applicable).
We may use the personal information to contact you about our products and services and send information and news to you about the Site and about Us.
Third party providers
We may use third party providers to facilitate your Visit to our Site and/or your Purchase from our Site. In these instances, the personal information made available by us to the third party provider will be stored by the third party provider. The third parties that we use, which are relevant to Visits and Purchases from our Site currently include Microsoft, Drip, HelpScout, Pipedrive, and Bluetick, but may be changed from time to time.
International data transfers
We use or may use third parties including data hosting providers in other countries, meaning we may transfer your personal data internationally.
In the case of the personal data of individuals in the European Economic Area (EEA), we only transfer the personal data to countries that have been identified as providing adequate protection or where that is not the case:
(a) by ensuring the required contractual requirements are included in our agreement with the relevant third party; or
(b) by ensuring the relevant third party is Privacy Shield certified (for transfers to US-based third parties).
For further information, please contact us using the details set out in the Contact us section below.
Access and correction
You may contact us at any time to request us to provide access to the personal information We hold about you. You may at any time request us to correct any errors in the information we hold about you.
SUITEFILES LIMITED (Supplier)
Software as a Service (SaaS) End User Terms and Conditions
Last updated April 2019
1 Terms and conditions
1.1 Acceptance of terms and conditions:
(a) The Customer accepts the terms and conditions in effect at the time of supply of the SaaS.
(b) The Supplier may update these terms and conditions at any time on one month’s written notice to the Customer except that where a Fixed Term applies the updated terms and conditions will not apply for the remainder of the current Fixed Term but will apply for the renewal of that Fixed Term (if any) and any ongoing use beyond the end of the current Fixed Term (as applicable).
(c) Without limiting clause 1.1(b), the Customer’s continued use of the SaaS confirms the Customer’s acceptance to be bound by the latest terms and conditions.
(d) Any additional or different terms that the Customer may stipulate or state in any communication with the Supplier will not be binding on the Supplier or included in the Agreement unless expressly agreed in writing by the Supplier.
1.2 The ‘Agreement’ comprises the Customer Information, Selected Options, Relevant Pricing, and these terms and conditions (as updated from time to time under clause 1.1(b) above).
1.3 These terms and conditions apply to customers that purchase SaaS (or on whose behalf SaaS is purchased) and if there is a trial period available, these terms and conditions also apply to that trial period.
1.4 The SaaS is available from the Supplier directly and from Authorized Partners and is available at various Purchase Locations. Regardless of where the purchase is made, these terms and conditions apply as between the Supplier and the Customer.
1.5 All capitalized terms used in these terms and conditions have the meanings given to them in the definition section in clause 20.
1.6 Where someone other than the Customer purchases SaaS on behalf of the Customer that person is deemed to have authority to accept these terms and conditions for the Customer.
2.1 If a Trial is available to the Customer and the Customer elects to use the SaaS for a Trial, the Customer acknowledges that use of SaaS for the Trial is subject to these terms and conditions.
2.2 Trial period
(a) The Trial will commence when the Trial SaaS is made available to the Customer. In order for the Trial SaaS to be available to the Customer, the Customer will need to follow the steps outlined to the Customer by the Supplier, the Authorized Partner or at the Purchase Location, and accept these terms and conditions. The Customer acknowledges that the Trial is for the version of SaaS made available under the free trial offer. The free trial will end on expiration of the Trial Period, unless terminated earlier under these terms and conditions.
2.3 Provisioning for Trial
(a) The Supplier will provide the Trial SaaS to the Customer in accordance with these terms and conditions. The Supplier will:
i. provide the Customer with access to the Trial SaaS;
ii. provide assistance with use of the SaaS as reasonably requested by the Customer (or the Supplier will procure the Authorized Partner to provide assistance). The assistance will be available during the hours notified by the Supplier, or the hours notified by the Authorized Partner or at the Purchase Location (as applicable). If no hours are notified, the Supplier or relevant Authorized Partner will use reasonable endeavours to provide assistance during their working day.
2.4 Common terms apply: Except for clauses 3, 5 6 and 7, all clauses of these terms and conditions apply to Trials (in addition to this clause 2).
3.1 Provision of SaaS: The Supplier will provide the SaaS to the Customer in accordance with the Agreement. The SaaS is provided to the Customer on a non-exclusive basis and the Customer’s right to use the SaaS is not transferable. The Supplier will provide log on access to the Customer to enable the Customer to access and use the SaaS.
3.2 SaaS Availability: The availability of the SaaS is dependent on factors outside of the Supplier’s control and as such the Supplier cannot and does not warrant that the SaaS will be continuously available or available without interruption. Without limiting the reasons for lack of availability of the SaaS, the SaaS could be unavailable due to:
(a) Planned Maintenance;
(b) lack of availability or outages of telecommunications networks;
(c) a network or device failure external to the Supplier’s or its third party provider’s data centers, including at Customer’s site or between the Customer’s site and the Supplier’s or third party’s data centers;
(d) issues resulting from the Customer’s use of infrastructure (including IaaS), software or services (other than the SaaS) including issues related to dependencies on the Primary Microsoft Product and/or Customer’s Integrated Services and Products;
(e) any third-party act, omission or circumstance which results in unavailability of the SaaS, whether malicious or not (other than where the third party is a subcontractor engaged by the Supplier); and
(f) a Force Majeure Event.
3.3 Security Breach
(a) Without limiting any other legal obligations that the Supplier may have in the event of a security breach, the Supplier represents that it has used and will continue to use reasonable endeavours in designing and/or utilizing the SaaS Systems and in operating and managing the SaaS so as to minimize the risk of a Security Breach.
(b) In the event of any Security Breach:
i. the Supplier will, subject to all applicable laws, notify the Customer as soon as practicable after the Supplier becomes aware of the Security Breach;
ii. the Customer will notify the Supplier as soon as practicable, but no later than 24 hours after the Customer becomes aware of the Security Breach;
(c) subject to all applicable laws, immediately following notification of a Security Breach under clause 3.3(a) or (b) above, the parties will coordinate with each other to investigate the Security Breach. The Supplier will cooperate with the Customer in the Customer’s handling of the matter, including, without limitation by assisting with any investigation, providing the Customer with physical access to the facilities and operations affected to the extent reasonably practical, facilitating interviews with the Supplier’s employees and others involved in the matter and making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by Customer.
(a) The Customer warrants that the Customer has the right and authority to deal with the Data in the manner contemplated by the Agreement.
(b) The Customer is responsible for:
i. all Data entry requirements; and
ii. except as expressly provided otherwise in the Agreement, for all aspects of the Customer’s access and use of the SaaS; and
iii. managing the Permitted Users in respect of their use of the SaaS and managing any changes to the Permitted Users;
iv. ensuring that Permitted Users keep all login details for the SaaS confidential and do not share their login details; and
v. ensuring that, in using the SaaS, the Customer and all Permitted Users comply with all applicable laws. To the extent permitted by law, the Supplier accepts no responsibility for ensuring that use of the SaaS will result in the Customer complying with applicable laws or enable the Customer to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
(c) Nothing in the Agreement transfers ownership of the Data to the Supplier or to any Authorized Partner.
(d) All Data is available to the Customer:
i. for the term of the Agreement, via the SaaS;
ii. on request to the Supplier at any time during the term of the Agreement and for a period of 30 days following expiration or termination of the Agreement.
3.5 Support: The Supplier will use reasonable endeavours to provide assistance in resolving issues in respect of the Customer’s access or use of the SaaS on request from the Customer.
3.6 Common terms apply: Except for clause 2, all clauses of these terms and conditions apply to the SaaS (in addition to this clause 3).
4 SaaS Dependencies
4.1 The Customer acknowledges that the SaaS:
(a) is dependent on proper implementation and availability and correct functioning of the Primary Microsoft Product;
(b) is or may be dependent on proper implementation and availability and correct functioning of the Customer’s Integrated Services and Products.
4.2 Neither the Supplier nor any Authorized Partner has any responsibility or liability to the Customer, and in any event no obligation to refund or reduce amounts paid by the Customer, for incorrect or unexpected functioning, or failure, of the SaaS where that incorrect or unexpected functioning, or failure, is directly or indirectly due to incorrect or inappropriate implementation or incorrect functioning, or lack of availability of:
(a) the Primary Microsoft Product; or
(b) the Customer’s Integrated Services and Products.
5 Beta Service
5.1 The Supplier may, at its discretion, offer a Beta Service to the Customer. The Customer may accept or decline any offer for a Beta Service at its discretion.
5.2 Beta Services:
(a) are made available for the purposes of evaluation and the Supplier may request the Customer’s feedback on the Beta Service;
(b) are not part of the SaaS for the purposes of the Agreement and any support services available from the Supplier in respect of the SaaS are not available in respect of the Beta Service;
(c) may be subject to additional terms and conditions. Where that is the case, the Customer will be required to accept the additional terms and conditions prior to use of the Beta Service;
(d) will be made available for the time period notified by the Supplier or until the Supplier notifies the Customer that:
i. the Beta Service will be or has been discontinued; or
ii. the Beta Service has been incorporated by the Supplier into the SaaS for general availability.
5.3 To the extent permitted by law, the Supplier has no liability to the Customer in connection with any Beta Service.
6 Charges and payment
6.1 The Customer will pay the Relevant Pricing for the SaaS to the Supplier, the Authorized Partner or via the Purchase Location (as applicable) in accordance with the timing accepted by the Customer, or agreed in writing between the Customer and the Supplier, or agreed in writing between the Customer and the Authorized Partner or as accepted by the Customer at the Purchase Location.
6.2 All applicable value added taxes will be charged and payable in addition to the Relevant Pricing.
6.3 Subject to clause 6.4, the Customer will pay all invoices in full, without setoff, counterclaim or deduction of any kind, on or before the due date.
6.4 If the Customer wishes to dispute an invoice, it must notify the Supplier in writing within 7 days of the date of the invoice and provide details of the dispute. The Customer may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute.
6.5 Without the Supplier waiving any other right or remedy it may have, if any amount due is not paid by the Customer by the due date, the Supplier may:
(a) charge the Customer interest calculated at 1.5% per month on the balance of the amount due by the Customer from the due date until payment is received in full by the Supplier; and/or
(b) charge the Customer all collection costs reasonably incurred by the Supplier in collection of the amount outstanding (including solicitor and/or collection agency fees); and/or
(c) suspend supply of the SaaS until the outstanding amount is paid in full. The Supplier will give 5 Working Days’ notice in writing of its intention to suspend delivery under this clause.
6.6 The Relevant Pricing may be changed by the Supplier on the Supplier giving at least six weeks’ written notice (by email) to the Customer of the new charges that will apply except that where a Fixed Term applies, the new pricing will not apply until expiration of the current Fixed Term.
7.1 The Agreement commences (and provision of the SaaS commences) when the Customer purchases the SaaS and the Agreement will continue:
(a) where there is no Fixed Term, until terminated under clause 7.2 or clause 12;
(b) where there is a Fixed Term, for the Fixed Term unless terminated under clause 7.3 or clause 12.
7.2 In addition to the parties’ rights of early termination under the Agreement or otherwise at law, where there is no Fixed Term the Agreement may be terminated by the Customer at any time:
(a) on written notice to the Supplier, or where the purchase was made from an Authorized Partner on written notice to that Authorized Partner; or
(b) through the termination processes at the Purchase Location,
with the termination taking effect at the end of the month in which the Supplier or Authorized Partner (as applicable) confirms receipt of the Customer’s termination request.
7.3 In addition to the parties’ rights of early termination under the Agreement or otherwise at law, where a Fixed Term applies (including where the Customer selects a Fixed Term at the Purchase Location as a Selected Option (where available)), the Agreement will continue until expiration of the Fixed Term. On expiration of the Fixed Term the Agreement will, subject to clause 6.6, automatically continue for further periods each of the duration of the Fixed Term (or such shorter period as may apply following the initial Fixed Term) on the same terms and conditions (unless updated as provided for under clause 1.1(b)) unless at least one month prior to the expiration of the current Fixed Term one party notifies the other party in writing that the Agreement is to terminate on expiry of the current Fixed Term.
8 GDPR and Data Protection
8.1 Where the GDPR applies, the GDPR & Data Protection Schedule attached to these terms and conditions applies. Where the GDPR does not apply, the GDPR & Data Protection Schedule may not be attached or if it is attached in any event does not apply.
9 Intellectual Property
9.1 All Intellectual Property in:
(a) the SaaS; and
(b) the software, processes, methodology and know-how used by the Supplier in its performance of the Agreement;
is the property of the Supplier (or its licensors) and nothing in the Agreement operates to change that ownership.
9.2 The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so:
(a) copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the SaaS Systems; or
(b) permit or enable users other than Permitted Users to access or use the SaaS; or
(c) provide the SaaS to any users through operation of a bureau or like service; or
(d) resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the SaaS; or
(e) use the SaaS in any way that could damage or interfere with the SaaS Systems in any way;
(f) use the SaaS otherwise than in the manner in which the SaaS is designed to be used;
(g) use the SaaS in any way that could interrupt, damage or otherwise interfere with use of the SaaS by any other customers;
(h) do any act which would or might invalidate or be inconsistent with the Supplier’s Intellectual Property rights.
9.3 The Customer must notify the Supplier of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the SaaS infringes any rights of any other person, as soon as that infringement or claim comes to the Customer’s notice. The Customer must (at the Supplier’s expense) do all such things as may reasonably be required by the Supplier to assist the Supplier in pursuing or defending any proceedings in relation to any such infringement or claim.
9.4 The Customer indemnifies the Supplier against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
(a) use of the SaaS in a manner or for a purpose or in combination with any other SaaS or product not reasonably contemplated or authorized by the Supplier; or
(b) a breach by the Customer of clause 9.2.
10 Confidential Information
10.1 The parties recognise and acknowledge the confidential nature of the Confidential Information.
10.2 Neither party may use or disclose any Confidential Information other than:
(a) to its employees, directors or contractors to the extent necessary in the performance of the Agreement; or
(b) with the express prior written consent of the other party; or
(c) to its professional advisers.
11.1 Each party warrants to the other that it has authority to enter into and perform and the ability to perform its obligations under the Agreement.
11.2 With the exception of the warranties given under clauses 11.1, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
11.3 Any warranties made to the Customer under the Agreement extend solely to the Customer.
12.1 The Supplier or the Customer may terminate the Agreement immediately on written notice to the other party if the other party:
(a) breaches any of its obligations under the Agreement and fails to remedy the breach within 20 days of receiving notice requiring the breach to be remedied; or
(b) ceases business or becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
12.2 On termination of the Agreement:
(a) all amounts due to the Supplier or relevant Authorized Partner will become immediately due and payable;
(b) the Supplier will cease to provide the SaaS to the Customer, and the Customer will cease to have any entitlement to use the SaaS;
(c) the provisions of the Agreement that are by their nature intended to survive termination will remain in full force.
13.1 This limitation does not apply to claims by the Customer for bodily injury or damage to real property or tangible personal property where the Supplier is legally liable for that injury or damage.
13.2 The Supplier’s liability under this Agreement is limited to direct loss only, to the amount paid by the Customer in the 3 month period preceding the event giving rise to the claim.
13.3 In no event is the Supplier liable for any indirect loss or for any loss of profits, lost savings, lost revenue, loss of data, business interruption, incidental or special damages, or for any consequential loss.
14 Dispute resolution
14.1 In the event of any dispute arising between the parties in relation to the Agreement, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 14.
14.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations ("Other Party's Notice"). Each nominated representative will have authority to settle or resolve the dispute. The parties will co-operate with each other and endeavour to resolve the dispute through discussion and negotiation.
14.3 If the dispute is not resolved within one month following the date of the Other Party's Notice (or such longer period agreed by the parties in writing), either party may utilize any other legal remedies available to it in seeking to resolve the dispute.
15 Consumer guarantees
15.1 The Customer acknowledges that where it is acquiring the SaaS for the purposes of a business, to the extent permitted by the relevant legislation, any statutory consumer guarantees or legislation that are intended to apply to non-business consumers only will not apply.
16 Force majeure
16.1 The Supplier may suspend its obligations to perform under the Agreement if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
16.2 Where the Supplier’s obligations have been suspended under clause 16.1 for a period of 90 days or more, the Customer may immediately terminate the Agreement by giving notice in writing to the Supplier.
17.1 Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
17.2 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
17.3 Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
17.4 Independent contractor: The Supplier is an independent contractor to the Customer and is in all respects independent of the Customer. Nothing in the Agreement constitutes either party a partner, agent, employee or joint venture of the other.
17.5 Suspension: The Supplier may suspend performance of its obligations under the Agreement for so long as it is unable to perform for reasons outside of its control.
17.6 Assignment: The Customer is not permitted to assign its rights under the Agreement.
18.1 Notices from the Supplier to the Customer under the Agreement will be sent to the Customer at the Customer’s contact details specified in the Customer Information. The Customer may notify the Supplier of a change to the contact details specified in the Customer Information, on seven days’ notice in writing to the Supplier. Notices from the Customer to the Supplier under the Agreement must be sent to the Supplier at the Supplier’s relevant office, details included on the Supplier’s website.
18.2 Notices sent by email will be deemed received on sending, provided that the sender does not receive an automatic delivery failure notification. Notices sent by post will be deemed received:
(a) on the third day following posting if sent and received locally (not internationally); and
(b) on the tenth day following posting if posted internationally.
19 Governing law and jurisdiction:
19.1 The Agreement is governed by the laws of New Zealand. The parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
20 Definitions: In these terms and conditions:
“Agreement” has the meaning given to that term in clause 1.2 above;
“Authorized Partner” means a third party that has been authorized by the Supplier to sell the SaaS;
“Beta Service” means a service or functionality that is identified as ‘beta’ or with a description that identifies the service or functionality as not yet in production;
“Confidential Information” means any proprietary information, know-how and data disclosed or made available by one party to the other party but does not include any information which:
(a) is in the public domain without any breach of the Agreement;
(b) on receipt by the other party is already known by that party;
(c) is at any time after the date of receipt by the other party, received in good faith by that party from a third party;
(d) required by law to be disclosed by the other party;
“Customer” means the customer named in the Customer Information;
“Customer Information” means the customer name, email address and any other contact information submitted by or on behalf of a customer:
(a) to the Supplier or Authorized Partner in the course of agreeing to purchase (or agreeing to a Trial) of the SaaS;
(b) at a Purchase Location in the course of agreeing to purchase (or agreeing to a Trial) the SaaS;
“Customer’s Integrated Services and Products” means services or products (including third party services or products) which are integrated (in any way) by or for the Customer with the Primary Microsoft Product (or with the SaaS), regardless of who undertakes that integration work or how it is undertaken;
“Data” means the Customer's data that is entered by the Customer and processed in the course of provision of the SaaS and includes where the context permits, the ‘Personal Data’ (as defined in the attached GDPR and Data Protection Schedule);
“Fixed Term” (if any) means:
(a) the fixed term for supply of the SaaS, agreed in writing between the Supplier or relevant Authorized Partner and the Customer; or
(b) the fixed term selected by the Customer in the Selected Options;
“Force Majeure Event” means any war, riot, third party strike, natural disaster or other circumstance of a similar nature that is outside of the control of the affected party;
“GDPR” means EU General Data Protection Regulation 2016/679;
“Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
“Permitted Users” means:
(a) employees, directors or contractors of the Customer; and
(b) where the Selected Options include options for selecting the number of permitted users, not more than the number of employees, directors or contractors selected;
“Planned Maintenance” means maintenance on all or any part of the SaaS Systems and if applicable to the Agreement will be undertaken at times notified to the Customer in writing;
“Primary Microsoft Product” means the Microsoft product or products for which the SaaS is an add-on, as notified in writing by the Supplier or an Authorized Partner or at the Purchase Location prior to purchase of the SaaS by the Customer (or prior to a Trial, where applicable);
“Purchase Location” means any internet site from which the SaaS is available for purchase;
“Relevant Pricing” means the pricing for the SaaS that is notified in writing to the Customer by the Supplier or by the relevant Authorized Partner prior to the purchase by the Customer or made available at the Purchase Location, and where Selected Options apply, means or includes (as applicable) the pricing for the Selected Options;
“SaaS” means the software-as-a-service supplied by the Supplier and selected by the Customer by agreement with the Supplier or an Authorized Partner or at the Purchase Location, as modified from time to time by the Supplier;
“SaaS Systems” means, as the context permits, the software used by the Supplier to provide the SaaS and/or the equipment on which that software is installed (whether this is the Supplier’s software or equipment or is third party software or equipment);
“Security Breach” means access or disclosure of the Data to or by anyone other than the Permitted Users where the access or disclosure occurs through bypassing the security mechanisms of the SaaS Systems;
“Selected Options” means, if there are options to choose from for provision of the SaaS, the options for provision of the SaaS selected by the Customer by agreement with the Supplier, an Authorized Partner or at the Purchase Location (the options may include, for example, the maximum number of users or the term for which the SaaS is to be provided);
“Trial” (where available) means use of the SaaS, free of charge;
“Trial Period” (where applicable) means the trial period notified to the Customer in writing by the Supplier, Authorized Partner or at the Purchase Location, prior to commencement of the Trial;
“Trial SaaS” (if any) means the version of the SaaS made available by the Supplier at its discretion for a Trial.
20.2 Interpretation: In these terms and conditions:
(a) reference to the plural includes reference to the singular, and vice versa;
(b) headings inserted for convenience of reference only and do not affect the interpretation of the Agreement.
GDPR & Data protection schedule
Under the Agreement, the Customer engages or may engage the Supplier to Process Personal Data on behalf of the Customer. To the extent of that Processing of Personal Data and for the purposes of the Agreement, the Customer is a ‘Controller’ and the Supplier is a ‘Processor’ for the purposes of the GDPR. As such, Article 28 of the GDPR requires that the details in this schedule are included in the contract between the Customer and the Supplier.
The parties must set out the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and categories of data subjects – see appendix 1 to this schedule.
The terms used in this schedule have the meanings given to them in clause 13 of this schedule. Capitalized terms used in this schedule that are not defined in clause 13 of this schedule have the meaning given to them in the GDPR or in the Agreement.
Headings used in this schedule are for ease of reference only and are not intended to influence the interpretation of a clause.
1 Processing of Personal Data
1.1 The Supplier will:
(a) Instructions from Customer: in providing Services under this Agreement, Process Personal Data only on the Customer’s documented instructions (as provided in clause 2 and in appendix 1 to this schedule or otherwise in writing) unless required to do so by Member or Union State law which applies to the Supplier in which case the Supplier will inform the Customer of that legal requirement before Processing unless the Supplier is prohibited from informing the Customer by that law;
(b) Confidentiality: ensure that the Supplier’s personnel who are authorised to Process the Personal Data have obligations of confidentiality to the Supplier (including as required in clause 3 below) in respect of the Personal Data or are under an appropriate statutory obligation of confidentiality;
(c) Security: comply with the security obligations in clause 4 below;
(d) Subprocessors: comply with the provisions relating to Subprocessors in clause 5 below;
(e) Data subjects’ rights: provide assistance to the Customer with responding to data subjects’ rights in accordance with clause 6 below;
(f) Assist Customer: comply with its obligations to assist the Customer in relation to security of Personal Data and data protection impact assessments and prior consultation in accordance with clause 7 below;
(g) Deleting and retuning data: after the provision of Services related to Processing of Personal Data has ended, at the choice of the Customer either delete or return to the Customer all of that Personal Data and delete existing copies unless Member or Union State law requires storage of Personal Data in accordance with clause 8 below; and
(h) Compliance and audits: make available to the Customer all information necessary to demonstrate compliance with Article 28 of the GDPR and allow for and contribute to audits including inspections conducted by the Customer or another auditor mandated from time to time, in accordance with clause 9 below. The Supplier will immediately inform the Customer if, in its opinion, an instruction received from the Customer under this clause 1.1(h), infringes the GDPR or other Member or Union State data protection provisions.
2 Instructions from Customer
2.1 The Customer instructs the Supplier (and authorises the Supplier to instruct each Subprocessor) to:
(a) Process Personal Data; and
(b) in particular, transfer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with and in compliance with the Agreement.
2.2 The Customer warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in clause 2.1 on behalf of the Customer.
3.1 The Supplier will take reasonable steps to ensure the reliability of its employees, agents or contractors who may have access to Personal Data, ensuring in each case that access is limited to those individuals who need to know or need to access the relevant Personal Data, as necessary for the purposes of the Agreement, and to comply with applicable laws in the context of that individual's duties to the Supplier, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Subject to clause 4.2 below, the Supplier will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including amongst other things as appropriate:
(a) the pseudonymisation and encryption of Personal Data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
(d) a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
4.2 In assessing the appropriate level of security for clause 4.1 above, the Supplier will take account in particular of the risks of a Personal Data Breach that are presented by the Processing to be undertaken under the Agreement.
4.3 The Supplier will in relation to Personal Data:
(a) implement and maintain appropriate information security to protect Personal Data against:
i. a Personal Data Breach;
ii. all other unauthorized or unlawful forms of Processing; and
iii. any breach of the Supplier’s information security obligations in this schedule. The Supplier will (and will ensure that its Sub-processors) provide full cooperation and assistance to the Customer in ensuring that the individuals´ rights under the GDPR or applicable Member State laws are timely and appropriately addressed for the fulfilment of the Customer’s obligation to respond without undue delay to requests by such individuals as required by Data Privacy Laws, including the rights of subject access, rectification, erasure, and portability, and the right to restrict or object to certain Processing;
(b) take reasonable steps to inform its staff, and any other person acting under its supervision, of the responsibilities of any Data Privacy Laws due to the incidental access to Personal Data, and ensure the reliability of its staff and any other person acting under its supervision who may come into contact with, or otherwise have access to and Process, such Personal Data.
5.1 The Customer authorises the Supplier to appoint Subprocessors (and permits each Subprocessor appointed in accordance with this clause 5 to appoint Subprocessors) in accordance with this clause 5 and any restrictions in the Agreement.
5.2 The Supplier will give the Customer prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within two weeks of receipt of that notice, the Customer notifies the Supplier in writing of any objections (on reasonable grounds) to the proposed appointment, the Supplier will not appoint (nor disclose any Personal Data to) the proposed Subprocessor unless and until it obtains the prior written consent of the Customer.
5.3 With respect to each Subprocessor, the Supplier will:
(a) enter into an agreement with the Subprocessor which includes the same data protection obligations as set out in this schedule (and Appendix 1) and in particular includes sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. If the Subprocessor fails to fulfil its data protection obligations, the Supplier will remain fully liable to the Customer for the performance of that Subprocessor’s obligations[AS1] [JR2] [JR3] ;
(b) if the Processing by the Subprocessor will involve a Restricted Transfer, ensure that the Standard Contractual Clauses (in Appendix 2 to this schedule) are at all relevant times incorporated into the agreement between the Supplier and the Subprocessor; and
(c) provide to the Customer for review, copies of the Supplier’s agreements with Subprocessors (confidential commercial information that is not relevant to the requirements of this schedule may be blacked out) as the Customer may request from time to time.
5.4 Appendix 1 to this schedule sets out certain information regarding the Supplier’s Processing of Personal Data, as required by article 28(3) of the GDPR. The Customer may make reasonable amendments to Appendix 1 by written notice to the Supplier from time to time as the Customer reasonably considers necessary to meet those requirements.
6 Data Subjects’ Rights
6.1 Taking into account the nature of the Processing, the Supplier will, by implementing appropriate technical and organisational measures to the extent described in clause 4, assist the Customer to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 The Supplier will:
(a) promptly notify the Customer if the Supplier or any Subprocessor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
(b) ensure that the Supplier or relevant Subprocessor does not respond to that request except on the documented instructions of the Customer or as required by Applicable Laws to which they are subject, in which case the Supplier will to the extent permitted by Applicable Laws inform the Customer of that legal requirement before the Supplier or relevant Subprocessor responds to the request.
7 Assist Customer
7.1 Assist Customer with Security of Processing:
(a) The Supplier will assist the Customer in respect of the Customer’s obligations to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, by complying with the Supplier’s obligations under clause 4 of this schedule.
7.2 Assist Customer with notifications of Personal Data Breach
(a) The Supplier will notify the Customer without undue delay if the Supplier or any Subprocessor becomes aware of a Personal Data Breach, providing the Customer with sufficient information to allow the Customer to meet any obligations to report the Personal Data Breach to the relevant Supervisory Authority under the Data Protection Laws (noting that the Customer is required, where feasible, to notify applicable Personal Data breaches to the relevant Supervisory Authority within 72 hours after having become aware of the breach).
(b) The Supplier will co-operate with the Customer and take such reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
7.3 Assist Customer with communication of Personal Data breach to Data Subject
(a) Where a Personal Data Breach is likely to result in a high risk to the rights and freedoms of natural persons:
i. such that the Customer is required to communicate the Personal Data Breach to the Data Subject (including where, despite the conditions referenced in clause 7.3(a)(ii) below being met, the Supervisory Authority has required the Customer to communicate the Personal Data Breach to the Data Subject), the Supplier will assist the Customer in doing so by providing all relevant information as may be reasonably required by the Customer;
ii. but despite that high risk, the Customer is not required to communicate the Personal Data Breach to the Data Subject due to certain conditions being met (such as that the Personal Data is encrypted and so unintelligible to any person not authorised to access it), the Supplier will assist the Customer by providing all relevant information as may be reasonably required by the Customer.
7.4 Assist Customer with Data Protection Impact Assessments
(a) The Supplier will provide reasonable assistance to the Customer with any data protection impact assessments which the Customer reasonably considers to be required of the Customer by Article 35 of the GDPR or equivalent provisions of related Data Protection Laws. The Supplier’s obligations under this clause 7.4(a) are solely in relation to Processing of Personal Data by the Supplier and taking into account the nature of the Processing and information available to the Supplier.
7.5 Assist Customer with Prior Consultation with Supervisory Authority
(a) The Supplier will provide reasonable assistance to the Customer with prior consultations with Supervising Authorities or other competent data privacy authorities, which the Customer reasonably considers to be required of the Customer by Article 36 of the GDPR or equivalent provisions of related Data Protection Laws. The Supplier’s obligations under this clause 7.5(a) are solely in relation to Processing of Personal Data by the Supplier and taking into account the nature of the Processing and information available to the Supplier.
8 Deletion or return of Personal Data
8.1 Subject to clauses 8.2 and 8.3, the Supplier will, within four weeks of the date of expiration or termination of Services involving the Processing of Personal Data (the "End of Processing Date"), delete and procure the deletion of all copies of the Personal Data.
8.2 Subject to clause 8.3, the Customer may in its absolute discretion by written notice to the Supplier within four weeks of the End of Processing Date require the Supplier to:
(a) return a complete copy of all Personal Data to the Customer by secure file transfer in such format as is reasonably notified by the Customer to the Supplier; and
(b) delete and procure the deletion of all other copies of Personal Data Processed by the Supplier. The Supplier will comply with any such written request within four weeks of the End of Processing Date.
8.3 The Supplier may retain Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that the Supplier will:
(a) ensure the confidentiality of all such Personal Data;
(b) ensure that such Personal Data is only processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
8.4 The Supplier will provide written certification to the Customer that it has fully complied with this clause 8 within four weeks following the End of Processing Date.
9 Audit rights
9.1 Subject to clauses 9.2 to 9.4, the Supplier will make available to the Customer on request all information necessary to demonstrate compliance with this schedule, and will allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of Personal Data by the Supplier.
9.2 Information and audit rights of the Customer only arise under clause 9.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR).
9.3 The Supplier may, on reasonable grounds, object to the proposed auditor in which case the Customer will propose an alternate auditor.
(a) The Customer will give the Supplier reasonable notice of any audit or inspection to be conducted under clause 9.1 and will make (and ensure that its auditor makes) reasonable endeavours to avoid causing any damage, injury or disruption to the Supplier's premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. The Supplier need not give access to its premises for the purposes of such an audit or inspection for the purposes of more than one audit or inspection in any calendar year, except for any additional audits or inspections which:
i. the Customer reasonably considers necessary because of genuine concerns as to the Supplier's compliance with this schedule; or
ii. the Customer 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 the Customer has identified its concerns or the relevant requirement or request in its notice to the Supplier of the audit or inspection.
10 Restricted Transfers
10.1 Subject to clause 10.3, where the Services involve a ‘Restricted Transfer’, the Customer (as "data exporter") and the Supplier (as "data importer") each agrees to the Standard Contractual Clauses in respect of that Restricted Transfer (see definition but a ‘Restricted Transfer’ in essence means transferring Personal Data out of the European Union).
10.2 The Standard Contractual Clauses will come into effect under clause 10.1 on the later of:
(a) the data exporter becoming a party to them;
(b) the data importer becoming a party to them; and
(c) commencement of the relevant Restricted Transfer.
10.3 There is no requirement for the Supplier and Customer to agree to the Standard Contractual Clauses (or to include the Standard Contractual Clauses in the Agreement) where the transfer of Personal Data is to an Approved Jurisdiction.
11 Order of precedence
11.1 Nothing in this schedule reduces the Supplier's obligations under the Agreement in relation to the protection of Personal Data or permits the Supplier to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this schedule and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail.
11.2 Subject to clause 11.1, in the event of inconsistencies between the provisions of this schedule and the Agreement, the provisions of this schedule will prevail.
12 Changes in Data Protection Laws
12.1 The Customer may by at least 30 calendar days' written notice to the Supplier:
(a) vary the Standard Contractual Clauses, as they apply to Restricted Transfers which are subject to a particular Data Protection Law, as 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
(b) propose any other variations to this schedule which the Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.2 If the Customer gives notice under clause 12.1(a):
(a) the Supplier will promptly co-operate (and require affected Subprocessors to promptly co-operate) to ensure that equivalent variations are made to the agreements made under clause 5.3; and
(b) the Customer will not unreasonably withhold or delay agreement to any consequential variations to this schedule proposed by the Supplier to protect the Supplier against additional risks associated with the variations made under this clause 12.2.
12.3 If the Customer gives notice under clause 12.1(b), the parties will 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 the Customer's notice as soon as is reasonably practicable.
In this schedule:
“Approved Jurisdiction” means a country (or territory or specified sector within it) or an international organisation which the Commission has decided, under Article 45(3) of the GDPR, ensures an adequate level of data protection;
“Contracted Processor” means the Supplier or a Subprocessor
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
"Data Subject" means an identified or identifiable natural person, or any updated definition of this term from time to time in the GDPR;
"EEA" means the European Economic Area;
"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;
"GDPR" means EU General Data Protection Regulation 2016/679;
“Information Security Obligations” means commercially reasonable and appropriate physical, technical and organisational security measures (determined with regard to risks associated with the Processing of Personal Data as part of the Services), including the measures set out in the Agreement and in particular in Appendix 2 to this schedule (where applicable).
"Personal Data" means any information related to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person, or any updated definition of ‘Personal Data’ from time to time in the GDPR;
"Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed, or any updated definition of ‘Personal Data Breach’ from time to time in the GDPR;
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and ‘Process’ has a corresponding meaning;
"Restricted Transfer" means transferring Personal Data outside of the European Union, being:
(a) a transfer of Personal Data from the Customer to the Supplier or to a Subprocessor; or
(b) 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 means 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;
"Services" means the services and other activities to be supplied to or carried out by or on behalf of the Supplier for the Customer under the Agreement;
"Subprocessor" means any person (including any third party, but excluding an employee of the Supplier or any of its sub-contractors) appointed by or on behalf of the Supplier to Process Personal Data on behalf of the Customer in connection with the Agreement;
“Standard Contractual Clauses” means the clauses in Appendix 2 to this schedule;
The terms "Member State", “Union State”, "Supervisory Authority" have the meaning given to those terms in the GDPR, and corresponding terms have corresponding meanings.
The word "includes" means ‘includes without limitation’, and “including” has a corresponding meaning.
Appendix 1 to GDPR Schedule
Details of Processing of Personal Data
This Appendix 1 includes certain details of the Processing of Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Personal Data:
Such data may include your name, your physical address, your billing address, and your email address and for the period whilst we provide the services to you.
The nature and purpose of the Processing of Personal Data:
Such data is captured to provide the services to you, and for billing and support activities.
The types of Personal Data to be Processed:
Such data may include your name, your physical address, your billing address, and your email address.
The categories of Data Subject to whom Personal Data relates:
Such data may relate to current personnel, contractors, website end-users, suppliers, consumers, customers, prospects and application end-users.
The obligations and rights of the Customer:
The obligations and rights of the Customer are set out in this Agreement and this schedule.
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 and contact details of the data exporting organisation:
Refer definition of ‘Customer’ in clause 20 of the End User Terms.
(the data exporter)
Name and contact details of the data importing organisation:
Refer name of Supplier at start of these SaaS End User Terms.
Refer clause 18.1 of the End User Terms for contact details of Supplier.
(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.
The data exporter has entered into an Agreement with the data importer. Pursuant to the terms of the Agreement, 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.
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 organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3 The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
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; [If these Clauses are not governed by the law of a Member State, the words "within the meaning of Directive 95/46/EC" are deleted.]
(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).
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 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.
1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2 The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3 The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4 The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
1 The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2 The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.