Last Revised: 27/09/2021
This Data Processing Addendum (the “Addendum”) is executed by and between Heart Internet Limited and its Affiliates (“Heart Internet”) and you (“Customer”) and is annexed to and supplements our Terms of Service, Privacy Policy and any product specific agreements (collectively, the “Terms of Service”). Unless otherwise defined this Addendum, all capitalised terms not defined in this Addendum will have the meanings given to them in the Terms of Service.
“Affiliates” means any entity which is controlled by, controls or is in common
control with Heart Internet.
"CCPA” means the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq.,
including any amendments and any implementing regulations thereto that become effective on or after
the effective date of this Addendum.
“Customer Data” means the Personal Data of any Data Subject Processed by Heart
Internet within the Heart Internet Network on behalf of Customer pursuant to or in connection with
the Terms of Service.
“Data Controller” means the Customer, as the entity which determines the purposes
and means of the Processing of Personal Data.
“Data Processor” means Heart Internet, as the entity which Processes Personal Data
on behalf of the Data Controller, or the services provider as such term is defined by CCPA.
“Data Protection Laws” means all data protection or privacy laws and regulations
applicable to the Processing of Personal Data under the Agreement, including the (i) the Australian
Privacy Principles and the Australian Privacy Act (1988), (ii) Brazil’s Lei Geral de Proteção de
Dados (LGPD), (iii) CCPA, (iv) Canada’s Federal Personal Information Protection and Electronic
Documents Act (PIPEDA), (v) the GDPR, (vi) any national data protection laws made under or pursuant
to the GDPR (vii) the EU e-Privacy Directive (Directive 2002/58/EC), , (viii) Singapore’s Personal
Data Protection Act 2012 (PDPA); (ix) the Swiss Federal Data Protection Act of 19 June 1992 and its
Ordinance,(x), in respect of the United Kingdom, the Data Protection Act 2018; in each case as may
be amended, superseded or replaced.
“Data Subject” means the individual to whom Personal Data relates.
“EEA” means the European Economic Area.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data (General Data Protection Regulation).
“Heart Internet Network” means Heart Internet’s data center facilities, servers,
networking equipment, and host software systems (e.g., virtual firewalls) that are within Heart
Internet’s control and are used to provide the Services.
“Personal Data” means any information relating to an identified or identifiable
person or household as defined under Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon
Personal Data, whether or not by automatic means, such as collection, recording, organisation,
structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or combination, restriction,
erasure or destruction. “Process”, “processes” and “processed” will be interpreted accordingly.
Detail of Processing are set forth in Appendix 1.
“Security Incident” either (a) a breach of security of the Heart Internet Security
Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorised
disclosure of, or access to, any Customer Data; or (b) any unauthorised access to Heart Internet
equipment or facilities, where in either case such access results in destruction, loss, unauthorised
disclosure, or alteration of Customer Data.
“Security Standards” means the security standards attached to this Addendum as
Appendix 2.
“Sensitive Data” means (a) social security number, passport number, driver’s
license number, or similar identifier (or any portion thereof); (b) credit or debit card number
(other than the truncated (last four digits) of a credit or debit card), financial information,
banking account numbers or passwords; (c) employment, financial, genetic, biometric or health
information; (d) racial, ethnic, political or religious affiliation, trade union membership, or
information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or
date of birth; (f) criminal history; or (g) any other information or combinations of information
that falls within the definition of “special categories of data” under GDPR or any other applicable
law or regulation relating to privacy and data protection.
“Standard Contractual Clauses” or “SCCs” means the standard data
protection clauses for the transfer of personal data from a controller to a processor established in
third countries which do not ensure an adequate level of data protection, as described in Article 46
of the GDPR and approved by the European Commission decision 2021/914 of 4 June 2021. Module Two
(Controller to Processor) Standard Contractual Clauses are in Appendix 4.
“Sub-processor” means any Data Processor engaged by Processor to Process data on
behalf of Data Controller.
“UK Standard Contractual Clauses” means the standard data protection clauses for
the transfer of personal data to processors established in third countries which do not ensure an
adequate level of data protection, as described in Article 46 of the UK GDPR and approved by the
European Commission decision 2010/87/EU. The UK Standard Contractual Clauses are in Appendix 4.
2.1 Scope and Roles. This Addendum applies when Customer Data is processed by Heart
Internet where Heart Internet acts as the Data Processor on behalf of the Customer as the Data
Controller with respect to Customer Data.
2.2 Details of Data Processing. The subject matter of processing of Customer Data
by Heart Internet is the performance of the Services pursuant to the Terms of Service. Heart
Internet shall only Process Customer Data on behalf of and in accordance with Customer’s documented
instructions for the following purposes: (i) Processing in accordance with the Terms of Service;
(ii) Processing initiated by end users in their use of the Services; (iii) Processing to comply with
other documented, reasonable instructions provided by Customers (ex. via email) where such
instructions are consistent with the Terms of Service. Heart Internet shall not: (a) Process,
retain, use, sell, or disclose Customer Data except as necessary to provide Services pursuant to the
Terms of Service, or as required by law; (b) sell such Customer Data to any third party; (c) retain,
use, or disclose such Customer Data outside of the direct business relationship between Heart
Internet and Customer.
For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply
with all applicable data privacy laws. Customer shall have sole responsibility for the accuracy,
quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Heart
Internet shall not be required to comply with or observe Customer’s instructions if such
instructions would violate Data Protection Laws. The duration of the Processing, the nature and
purpose of the Processing, the types of PersonalData and categories of Data Subjects Processed under
this Addendum are further specified in Appendix 1 (‘Details of the Processing’) to this Addendum.
Heart Internet will not disclose Customer Data to any government or any other third party, except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a subpoena or court order). In the event Heart Internet receives a valid civil subpoena, and to the extent permitted, Heart Internet will endeavor to provide Customer with reasonable notice of the demand via email or postal mail to allow Customer to seek a protective order or other appropriate remedy.
4.1 Heart Internet has implemented and will maintain the technical and
organisational measures for the Heart Internet Network as described herein this Section and as
further described in Appendix 2 to this Addendum, Security Standards. In particular, Heart Internet
has implemented and will maintain the following technical and organisational measures that address
the (i) security of the Heart Internet Network; (ii) physical security of the facilities; (iii)
controls around employee and contractor access to (i) and/or (ii); and (iv) processes for testing,
assessing and evaluating the effectiveness of technical and organisational measures implemented by
Heart Internet. In the event that we are not able to meet any of its obligations set forth herein,
we will provide written notice (via our website and email) as soon as practically feasible.
4.2 Heart Internet makes available a number of security features and
functionalities that Customer may elect to use in relation to the Services. Customer is responsible
for (a) properly configuring the Services, (b) using the controls available in connection with the
Services (including the security controls) to ensure the ongoing confidentiality, integrity,
availability and resilience of processing systems and services, (c) using the controls available in
connection with the Services (including the security controls) to allow the Customer to restore the
availability and access to Customer Data in a timely manner in the event of a physical or technical
incident (e.g. backups and routine archiving of Customer Data), and (d) taking such steps as
Customer considers adequate to maintain appropriate security, protection, and deletion of Customer
Data, which includes use of encryption technology to protect Customer Data from unauthorised access
and measures to control access rights to Customer Data.
Taking into account the nature of the Services, Heart Internet offers Customer certain controls as described in the “Security” section of this Addendum that Customer may elect to use to retrieve, correct, delete or restrict use and sharing of Customer Data as described in the Services. Customer may use these controls as technical and organisational measures to assist it in connection with its obligations under applicable privacy laws, including its obligations relating to responding to requests from Data Subjects. As commercially reasonable, and to the extent lawfully required or permitted, Heart Internet shall promptly notify Customer if Heart Internet directly receives a request from a Data Subject to exercise such rights under any applicable data privacy laws (“Data Subject Request”). In addition, where Customer’s use of the Services limits its ability to address a Data Subject Request, Heart Internet may, where legally permitted and appropriate and upon Customer’s specific request, provide commercially reasonable assistance in addressing the request, at Customer’s cost (if any).
6.1 Authorised Sub-processors. Customer agrees that Heart Internet may use
Sub-processors to fulfil its contractual obligations under its Terms of Service and this Addendum or
to provide certain services on its behalf, such as providing support services. Customer hereby
consents to Heart Internet’s use of Sub-processors as described in this Section. Except as set forth
in this Section or as otherwise explicitly authorised by you, Heart Internet will not permit any
other sub-processing activities.
6.2 Sub-processor Obligations. Where Heart Internet uses any authorised
Sub-processor as described in Section 6.1:
(i) Heart Internet will restrict the Sub-processor’s access to Customer Data only
to what is necessary to maintain the Services or to provide the Services to Customer and any end
users in accordance with the Terms of Service. Heart Internet will prohibit the Sub-processor from
accessing Customer Data for any other purpose;
(ii) Heart Internet will enter into a written agreement with the Sub-processor and,
to the extent that the Sub-processor is performing the same data processing services that are being
provided by Heart Internet under this Addendum, Heart Internet will impose on the Sub-processor the
same contractual obligations that Heart Internet has under this Addendum; and
(iii) Heart Internet will remain responsible for its compliance with the
obligations of this Addendum and for any acts or omissions of the Sub-processor that cause Heart
Internet to breach any of Heart Internet’s obligations under this Addendum.
6.3 New Sub-processors. From time to time, we may engage new Sub-processors under
and subject to the terms of this Addendum. In such case, we will provide 30 days advance notice
(via our website and email) prior to any new Sub-processor obtaining any Customer Data. If you
Customer does not approve of a new Sub-processor, then Customer may terminate any Services without
penalty by providing, within 10 days or receipt of notice from us, written notice of termination
that includes an explanation of the reasons for your non-approval. If the Services are part of a
bundle or bundled purchase, then any termination will apply to its entirety.
7.1 Security Incident.If Heart Internet becomes aware of a Security Incident, Heart
Internet will without undue delay: (a) notify Customer of the Security Incident; and (b) take
reasonable steps to mitigate the effects and to minimise any damage resulting from the Security
Incident.
7.2 Heart Internet Assistance. To assist Customer in relation to any personal data
breach notifications Customer is required to make under any applicable privacy laws, Heart Internet
will include in the notification such information about the Security Incident as Heart Internet is
reasonably able to disclose to Customer, taking into account the nature of the Services, the
information available to Heart Internet, and any restrictions on disclosing the information, such as
confidentiality.
7.3 Failed Security Incidents.Customer agrees that:
(i)A failed Security Incident will not be subject to the terms of this Addendum. A
failed Security Incident is one that results in no unauthorised access to Customer Data or to any of
Heart Internet’s Network, equipment, or facilities storing Customer Data, and may include, without
limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful
log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic
data that does not result in access beyond headers) or similar incidents; and
(ii) Heart Internet’s obligation to report or respond to a Security Incident under
this Section is not and will not be construed as an acknowledgement by Heart Internet of any fault
or liability of Heart Internet with respect to the Security Incident.
7.4 Notifications. Notification of Security Incidents, if any, will be delivered to
one or more of Customer’s administrators by any means Heart Internet selects, including via email.
It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact
information on the Heart Internet management console and secure transmission at all times.
8.1 Independent Determination. Customer is responsible for reviewing the
information made available by Heart Internet relating to data security and its Security Standards
and making an independent determination as to whether the Services meets Customer’s requirements and
legal obligations as well as Customer’s obligations under this Addendum. The information made
available is intended to assist Customer in complying with Customer’s obligations under applicable
privacy laws, including the GDPR, in respect of data protection impact assessments and prior
consultation.
8.2 Customer Audit Rights. Customer has the right to confirm Heart Internet’s
compliance with this Addendum as applicable to the Services by making a specific request in writing,
at reasonable intervals, to the address set forth in the Terms of Service. If Heart Internet
declines to follow any instruction requested by Customer regarding a properly requested and scoped
audit or inspection, Customer is entitled to terminate this Addendum and the Terms of Service.
9.1 U.S. Based Processing. Except where specifically noted in the Terms of Service,
Customer Data will be transferred outside the United Kingdom, the EEA and processed in the United
States.
9.2 Application of Standard Contractual Clauses. The Standard Contractual Clauses
will apply to Customer Data that is transferred outside the EEA, either directly or via onward
transfer, to any country not recognised by the European Commission as providing an adequate level of
protection for Customer Data. The Standard Contractual Clauses will not apply to Customer Data that
is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the
foregoing, the Standard Contractual Clauses will not apply where the data is transferred in
accordance with a recognised compliance standard for the lawful transfer of Customer Data outside
the EEA, such as when necessary for the performance of Covered Services pursuant to the Terms of
Service or with your consent.
9.3 Application of UK Standard Contractual Clauses. The UK Standard Contractual
Clauses will apply to Customer Data transferred via Covered Services from the United Kingdom, either
directly or via onward transfer, to any country not recognised by the competent United Kingdom
regulatory authority or governmental body as providing an adequate level of protection for Customer
Data. The UK Standard Contractual Clauses will not apply to Customer Data that is not transferred,
either directly or via onward transfer, outside the United Kingdom. Notwithstanding the foregoing,
the UK Standard Contractual Clauses will not apply where the data is transferred in accordance with
a recognised compliance standard for the lawful transfer of Customer Data outside the United
Kingdom, such as when necessary for the performance of Covered Services pursuant to the Terms of
Service or with your consent.
This Addendum will continue in force until the termination of our processing in accordance with the Terms of Service (the “Termination Date”).
As described in the Terms of Service, Customer may be provided controls that may use to retrieve or delete Customer Data. Deletion of Customer Data will take place thirty (30) days following Termination Date, subject to the terms of the particular Services.
The liability of each party under this Addendum will be subject to the exclusions and limitations of liability set out in the Terms of Service. Customer agrees that any regulatory penalties incurred by Heart Internet in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum and any applicable privacy laws will count towards and reduce Heart Internet’s liability under the Terms of Service as if it were liability to the Customer under the Terms of Service.
This Addendum supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Heart Internet, whether written or verbal, regarding the subject matter of this Addendum, including any data processing addenda entered into between Heart Internet and Customer with regard to the processing of personal data and on the free movement of such data. Except as amended by this Addendum, the Terms of Service will remain in full force and effect. If there is a conflict between the Terms of Service and this Addendum, the terms of this Addendum will control.
1.Nature and Purpose of Processing. Heart Internet will Process Customer Data as necessary to perform the Services pursuant to the Terms of Service and as further instructed by Customer throughout its use of the Services.
2.Duration of Processing. Subject to Section 10 and 11 of this Addendum, Heart Internet will Process Customer Data during the effective date of the Terms of Service. Notwithstanding the foregoing, Heart Internet may retain Customer Data, or any portion of it, if required by applicable laws or regulation, including applicable Data Protection Laws, provided that such Customer Data remains protected in accordance with the terms of this Addendum and applicable Data Protection Laws.
3.Categories of Data Subjects. Customer may upload Personal Data in the course of
its use of the Services, the extent to which is determined and controlled by Customer in its sole
discretion, and which may include, but is not limited to Personal Data relating to the following
categories of Data Subjects:
4.Categories of Personal Data. Customer may upload Personal Data in the course of its use of
the
Services, the type of and extent to which is determined and controlled by Customer in its sole
discretion, and which may include, but is not limited to the following categories of Personal
Data of
Data Subjects:
5. Sensitive Data or Special Categories of Data. Customer may upload Sensitive Data in the
course of its
use of the Services, the type of and extent to which is determined and controlled by Customer in its
sole discretion. Customer is responsible for applying restrictions or safeguards that fully take
into
consideration the nature of the data and the risks involved prior to transmitting or processing any
Sensitive Data via the Services.
We are committed to protect our customers' information. Taking into account the best practices, the costs of implementation and the nature, scope, circumstances and purposes of processing as well as the different likelihood of occurrence and severity of the risk to the rights and freedoms of natural persons we take the following technical and organisational measures. When selecting the measures the confidentiality, integrity, availability and resilience of the systems are considered. A quick recovery after a physical or technical incident is guaranteed.
Our Data Privacy Program is established to maintain a global data governance structure and secure information throughout its lifecycle. This program is driven by the office of the data protection officer, which oversees the implementation of privacy practices and security measures. We regularly test, assess and evaluate the effectiveness of its Data Privacy Program and Security Standards.
“Confidentiality means that personal data is protected against unauthorised disclosure.”
We use a variety of physical and logical measures to protect the confidentiality of its customers' personal data. Those measures include:
Physical Security
Access Control & Prevention of Unauthorised Access
Encryption
Data Minimisation
Security Testing
“Integrity refers to ensuring the correctness (intactness) of data and the correct functioning of systems. When the term integrity is used in connection with the term "data", it expresses that the data is complete and unchanged.”
Appropriate change and log management controls are in place, in addition to access controls to be able to maintain the integrity of personal data such as:
Change & Release Management
Logging & Monitoring
“The availability of services and IT systems, IT applications, and IT network functions or of information is guaranteed, if the users are able to use them at all times as intended.”
We implement appropriate continuity and security measures to maintain the availability of its services and the data residing within those services:
"Data Processing Instructions refers to ensuring that personal data will only be processed in accordance with the instructions of the data controller and the related company measures"
We have established internal privacy policies, agreements and conduct regular privacy trainings for employees to ensure personal data is processed in accordance with customers’ preferences and instructions.
Please click here to access the list of sub-processors.
See Section 9.2 of the Addendum for applicability of these SCCs Standard Contractual Clauses (Controller to Processors)
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements
of
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free
movement of
such data (General Data Protection Regulation) for the transfer of data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter
‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data
exporter’),
and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly
or
indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each
‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part
of
these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and
effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679
and, with respect to data transfers from controllers to processors and/or processors to processors,
standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they
are
not modified, except to select the appropriate Module(s) or to add or update information in the
Appendix. This does not prevent the Parties from including the standard contractual clauses laid
down in
these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided
that
they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or
freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by
virtue
of Regulation (EU) 2016/679.
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the
data
exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall
have
the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU)
2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations
provided
for in Regulation (EU) 2016/679.
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements
between
the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses
shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are
transferred
and the purpose(s) for which they are transferred, are specified in Annex I.B.
Intentionally Omitted
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer
is
able, through the implementation of appropriate technical and organisational measures, to satisfy
its
obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data
exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those
instructions.
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
(a) The data importer and, during transmission, also the data exporter shall implement appropriate
technical and organisational measures to ensure the security of the data, including protection
against a
breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised
disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate
level of security, the Parties shall take due account of the state of the art, the costs of
implementation, the nature, scope, context and purpose(s) of processing and the risks involved in
the
processing for the data subjects. The Parties shall in particular consider having recourse to
encryption
or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled
in
that manner. In case of pseudonymisation, the additional information for attributing the personal
data
to a specific data subject shall, where possible, remain under the exclusive control of the data
exporter. In complying with its obligations under this paragraph, the data importer shall at least
implement the technical and organisational measures specified in Annex II. The data importer shall
carry
out regular checks to ensure that these measures continue to provide an appropriate level of
security.
(b) The data importer shall grant access to the personal data to members of its personnel only to
the
extent strictly necessary for the implementation, management and monitoring of the contract. It
shall
ensure that persons authorised to process the personal data have committed themselves to
confidentiality
or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer
under
these Clauses, the data importer shall take appropriate measures to address the breach, including
measures to mitigate its adverse effects. The data importer shall also notify the data exporter
without
undue delay after having become aware of the breach. Such notification shall contain the details of
a
contact point where more information can be obtained, a description of the nature of the breach
(including, where possible, categories and approximate number of data subjects and personal data
records
concerned), its likely consequences and the measures taken or proposed to address the breach
including,
where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is
not
possible to provide all information at the same time, the initial notification shall contain the
information then available and further information shall, as it becomes available, subsequently be
provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter
to
comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent
supervisory authority and the affected data subjects, taking into account the nature of processing
and
the information available to the data importer.
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
The data importer shall only disclose the personal data to a third party on documented instructions
from
the data exporter. In addition, the data may only be disclosed to a third party located outside the
European Union (in the same country as the data importer or in another third country, hereinafter
‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the
appropriate
Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45
of
Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47
Regulation
of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in
the
context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or
of
another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards
under
these Clauses, in particular purpose limitation.
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that
relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data
importer shall keep appropriate documentation on the processing activities carried out on behalf of
the
data exporter.
(c) The data importer shall make available to the data exporter all information necessary to
demonstrate
compliance with the obligations set out in these Clauses and at the data exporter’s request, allow
for
and contribute to audits of the processing activities covered by these Clauses, at reasonable
intervals
or if there are indications of non-compliance. In deciding on a review or audit, the data exporter
may
take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor.
Audits may include inspections at the premises or physical facilities of the data importer and
shall,
where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the
results
of any audits, available to the competent supervisory authority on request.
(a) The data importer has the data exporter’s general authorisation for the engagement of
sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter
in
writing of any intended changes to that list through the addition or replacement of sub-processors
at
least fifteen (15) days in advance, thereby giving the data exporter sufficient time to be able to
object to such changes prior to the engagement of the sub-processor(s). The data importer shall
provide
the data exporter with the information necessary to enable the data exporter to exercise its right
to
object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on
behalf of the data exporter), it shall do so by way of a written contract that provides for, in
substance, the same data protection obligations as those binding the data importer under these
Clauses,
including in terms of third-party beneficiary rights for data subjects.The Parties agree that, by
complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data
importer shall ensure that the sub-processor complies with the obligations to which the data
importer is
subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor
agreement and any subsequent amendments to the data exporter. To the extent necessary to protect
business secrets or other confidential information, including personal data, the data importer may
redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the
sub-processor’s obligations under its contract with the data importer. The data importer shall
notify
the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby –
in
the event the data importer has factually disappeared, ceased to exist in law or has become
insolvent –
the data exporter shall have the right to terminate the sub-processor contract and to instruct the
sub-processor to erase or return the personal data.
(a) The data importer shall promptly notify the data exporter of any request it has received from a
data
subject. It shall not respond to that request itself unless it has been authorised to do so by the
data
exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to
data
subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard,
the
Parties shall set out in Annex II the appropriate technical and organisational measures, taking into
account the nature of the processing, by which the assistance shall be provided, as well as the
scope
and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with
the
instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format,
through
individual notice or on its website, of a contact point authorised to handle complaints. It shall
deal
promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with
these
Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion.
The
Parties shall keep each other informed about such disputes and, where appropriate, cooperate in
resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data
importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual
residence
or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body,
organisation
or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member
State
law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her
substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies
by
any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to
receive compensation, for any material or non-material damages the data importer or its
sub-processor
causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the
data
subject shall be entitled to receive compensation, for any material or non-material damages the data
exporter or the data importer (or its sub-processor) causes the data subject by breaching the
third-party beneficiary rights under these Clauses. This is without prejudice to the liability of
the
data exporter and, where the data exporter is a processor acting on behalf of a controller, to the
liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as
applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages
caused by
the data importer (or its sub-processor), it shall be entitled to claim back from the data importer
that
part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result
of a
breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data
subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to
claim back from the other Party/ies that part of the compensation corresponding to its/their
responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with
Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as
competent
supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the
competent
supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In
particular,
the data importer agrees to respond to enquiries, submit to audits and comply with the measures
adopted
by the supervisory authority, including remedial and compensatory measures. It shall provide the
supervisory authority with written confirmation that the necessary actions have been taken.
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third
country of destination applicable to the processing of the personal data by the data importer,
including
any requirements to disclose personal data or measures authorising access by public authorities,
prevent
the data importer from fulfilling its obligations under these Clauses. This is based on the
understanding that laws and practices that respect the essence of the fundamental rights and
freedoms
and do not exceed what is necessary and proportionate in a democratic society to safeguard one of
the
objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these
Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account
in
particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the
number
of actors involved and the transmission channels used; intended onward transfers; the type of
recipient;
the purpose of processing; the categories and format of the transferred personal data; the economic
sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the
disclosure of data to public authorities or authorising access by such authorities – relevant in
light
of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement
the
safeguards under these Clauses, including measures applied during transmission and to the processing
of
the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made
its
best efforts to provide the data exporter with relevant information and agrees that it will continue
to
cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the
competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these
Clauses and for the duration of the contract, it has reason to believe that it is or has become
subject
to laws or practices not in line with the requirements under paragraph (a), including following a
change
in the laws of the third country or a measure (such as a disclosure request) indicating an
application
of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason
to
believe that the data importer can no longer fulfil its obligations under these Clauses, the data
exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to
ensure security and confidentiality) to be adopted by the data exporter and/or data importer to
address
the situation. The data exporter shall suspend the data transfer if it considers that no appropriate
safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority
to
do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it
concerns the processing of personal data under these Clauses. If the contract involves more than two
Parties, the data exporter may exercise this right to termination only with respect to the relevant
Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this
Clause, Clause 16(d) and (e) shall apply.
(a) The data importer agrees to notify the data exporter and, where possible, the data subject
promptly
(if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities,
under
the laws of the country of destination for the disclosure of personal data transferred pursuant to
these
Clauses; such notification shall include information about the personal data requested, the
requesting
authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant
to
these Clauses in accordance with the laws of the country of destination; such notification shall
include
all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject
under
the laws of the country of destination, the data importer agrees to use its best efforts to obtain a
waiver of the prohibition, with a view to communicating as much information as possible, as soon as
possible. The data importer agrees to document its best efforts in order to be able to demonstrate
them
on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to
provide
the data exporter, at regular intervals for the duration of the contract, with as much relevant
information as possible on the requests received (in particular, number of requests, type of data
requested, requesting authority/ies, whether requests have been challenged and the outcome of such
challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the
duration of the contract and make it available to the competent supervisory authority on
request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to
Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with
these
Clauses.
(a) The data importer agrees to review the legality of the request for disclosure, in particular
whether
it remains within the powers granted to the requesting public authority, and to challenge the
request
if, after careful assessment, it concludes that there are reasonable grounds to consider that the
request is unlawful under the laws of the country of destination, applicable obligations under
international law and principles of international comity. The data importer shall, under the same
conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek
interim measures with a view to suspending the effects of the request until the competent judicial
authority has decided on its merits. It shall not disclose the personal data requested until
required to
do so under the applicable procedural rules. These requirements are without prejudice to the
obligations
of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for
disclosure and, to the extent permissible under the laws of the country of destination, make the
documentation available to the data exporter. It shall also make it available to the competent
supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when
responding to
a request for disclosure, based on a reasonable interpretation of the request.
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these
Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these
Clauses, the data exporter shall suspend the transfer of personal data to the data importer until
compliance is again ensured or the contract is terminated. This is without prejudice to Clause
14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the
processing
of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to
paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any
event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory
authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where
the
contract involves more than two Parties, the data exporter may exercise this right to termination
only
with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to
paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter
or
deleted in its entirety. The same shall apply to any copies of the data. The data importer shall
certify
the deletion of the data to the data exporter. Until the data is deleted or returned, the data
importer
shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data
importer that prohibit the return or deletion of the transferred personal data, the data importer
warrants that it will continue to ensure compliance with these Clauses and will only process the
data to
the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European
Commission
adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of
personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the
legal
framework of the country to which the personal data is transferred. This is without prejudice to
other
obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Federal Republic of Germany.
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member
State.
(b) The Parties agree that those shall be the courts of the Federal Republic of Germany.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer
before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Data Exporter(s): The data exporter is the entity identified as “Customer” in the
Addendum
Signature and date: As of the date of Data Exporter’s electronic acceptance of Data Importer’s Terms
of
Service, Data Exporter is deemed to have signed these standard contractual clauses.
Role: Controller
Data importer(s): Heart Internet Limited
Contact details: Office of the Data Protection Officer – privacy@heartinternet.uk
Signature and date: As of the date of Data Exporter’s electronic acceptance of Data Importer’s Terms
of
Service, Data Importer is deemed to have signed these standard contractual clauses.
Role: Processor
Categories of data subjects whose personal data is transferred are described in Appendix 1 of the Addendum.
Categories of personal data transferred are described in Appendix 1 of the Addendum.
Sensitive data transferred are described in Appendix 1 of the Addendum.
The frequency of the transfer is a continuous basis for the duration of the Terms of Service.
Nature of the processing is described in Section 2.2 and Appendix 1 of the Addendum.
Purpose(s) of the data transfer and further processing are described in Section 2.2 and Appendix 1 of the Addendum.
The period for which the personal data will be retained described in Appendix 1 of the Addendum.
For transfers to (sub-) processors, the subject matter, nature and duration of the processing is set forth in Annex III to the Standard Contractual Clauses.
The North Rhine-Westphalia State Commissioner for Data Protection and Freedom of Information ('LDI NRW') is the competent supervisory authority.
The technical and organisational security measures implemented by the Data Importer are as in Annex 2 of the Addendum.
List of sub-processors are in Appendix 3 of the Addendum.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to
processors
established in third countries which do not ensure an adequate level of data protection
The entity identified as “Customer” in the Addendum
(the “data exporter”)
and
Heart Internet Limited (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 Annex I.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor',
'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of
the
European Parliament and of the Council of 24 October 1995 on the protection of individuals with
regard
to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal
data
intended for processing on his behalf after the transfer in accordance with his instructions and the
terms of the Clauses and who is not subject to a third country's system ensuring adequate protection
within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the sub-processor' means any processor engaged by the data importer or by any other
sub-processor
of the data importer who agrees to receive from the data importer or from any other sub-processor of
the
data importer personal data exclusively intended for processing activities to be carried out on
behalf
of the data exporter after the transfer in accordance with his instructions, the terms of the
Clauses
and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and
freedoms of individuals and, in particular, their right to privacy with respect to the processing of
personal data applicable to a data controller in the Member State in which the data exporter is
established;
(f) 'technical and organisational security measures' means those measures aimed at protecting
personal
data against accidental or unlawful destruction or accidental loss, alteration, unauthorised
disclosure
or access, in particular where the processing involves the transmission of data over a network, and
against all other unlawful forms of processing.
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.
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause
5(a)
to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as
third-party
beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually
disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal
obligations of the data exporter by contract or by operation of law, as a result of which it takes
on
the rights and obligations of the data exporter, in which case the data subject can enforce them
against
such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the
data
importer have factually disappeared or ceased to exist in law or have become insolvent, unless any
successor entity has assumed the entire legal obligations of the data exporter by contract or by
operation of law as a result of which it takes on the rights and obligations of the data exporter,
in
which case the data subject can enforce them against such entity. Such third-party liability of the
sub-processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if
the
data subject so expressly wishes and if permitted by national law.
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will
continue
to be carried out in accordance with the relevant provisions of the applicable data protection law
(and,
where applicable, has been notified to the relevant authorities of the Member State where the data
exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will
instruct the data importer to process the personal data transferred only on the data exporter's
behalf
and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and
organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security
measures are appropriate to protect personal data against accidental or unlawful destruction or
accidental loss, alteration, unauthorised disclosure or access, in particular where the processing
involves the transmission of data over a network, and against all other unlawful forms of
processing,
and that these measures ensure a level of security appropriate to the risks presented by the
processing
and the nature of the data to be protected having regard to the state of the art and the cost of
their
implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or
will be informed before, or as soon as possible after, the transfer that its data could be
transmitted
to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to
Clause
5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to
continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of
Appendix 2, and a summary description of the security measures, as well as a copy of any contract
for
sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or
the
contract contain commercial information, in which case it may remove such commercial
information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with
Clause 11 by a sub-processor providing at least the same level of protection for the personal data
and
the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its
instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees
to
inform promptly the data exporter of its inability to comply, in which case the data exporter is
entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from
fulfilling
the instructions received from the data exporter and its obligations under the contract and that in
the
event of a change in this legislation which is likely to have a substantial adverse effect on the
warranties and obligations provided by the Clauses, it will promptly notify the change to the data
exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer
of
data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix
2
before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority
unless otherwise prohibited, such as a prohibition under criminal law to preserve the
confidentiality of
a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request,
unless it
has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its
processing
of the personal data subject to the transfer and to abide by the advice of the supervisory authority
with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the
processing activities covered by the Clauses which shall be carried out by the data exporter or an
inspection body composed of independent members and in possession of the required professional
qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable,
in
agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing
contract
for sub-processing, unless the Clauses or contract contain commercial information, in which case it
may
remove such commercial information, with the exception of Appendix 2 which shall be replaced by a
summary description of the security measures in those cases where the data subject is unable to
obtain a
copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained
its
prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause
11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the
data
exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the
obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to
receive
compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1
against the data exporter, arising out of a breach by the data importer or his sub-processor of any
of
their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually
disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the
data
subject may issue a claim against the data importer as if it were the data exporter, unless any
successor entity has assumed the entire legal obligations of the data exporter by contract of by
operation of law, in which case the data subject can enforce its rights against such entity. The
data
importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own
liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer
referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their
obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data
importer
have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor
agrees
that the data subject may issue a claim against the data sub-processor with regard to its own
processing
operations under the Clauses as if it were the data exporter or the data importer, unless any
successor
entity has assumed the entire legal obligations of the data exporter or data importer by contract or
by
operation of law, in which case the data subject can enforce its rights against such entity. The
liability of the sub-processor shall be limited to its own processing operations under the Clauses.
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.
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it
so
requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data
importer, and of any sub-processor, which has the same scope and is subject to the same conditions
as
would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation
applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or
any
sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take
the
measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, and when in doubt or where multiple data exporters, will be governed by the laws of England and Wales.
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of
the
data exporter under the Clauses without the prior written consent of the data exporter. Where the
data
importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it
shall
do so only by way of a written agreement with the sub-processor which imposes the same obligations
on
the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor
fails
to fulfil its data protection obligations under such written agreement the data importer shall
remain
fully liable to the data exporter for the performance of the sub-processor's obligations under such
agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for
a
third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able
to
bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or
the
data importer because they have factually disappeared or have ceased to exist in law or have become
insolvent and no successor entity has assumed the entire legal obligations of the data exporter or
data
importer by contract or by operation of law. Such third-party liability of the sub-processor shall
be
limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to
in
paragraph 1 shall be governed by the law of the Member State in which the data exporter is
established.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and
notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year.
The
list shall be available to the data exporter's data protection supervisory authority.
1. The parties agree that on the termination of the provision of data processing services, the data
importer and the sub-processor shall, at the choice of the data exporter, return all the personal
data
transferred and the copies thereof to the data exporter or shall destroy all the personal data and
certify to the data exporter that it has done so, unless legislation imposed upon the data importer
prevents it from returning or destroying all or part of the personal data transferred. In that case,
the
data importer warrants that it will guarantee the confidentiality of the personal data transferred
and
will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of
the
supervisory authority, it will submit its data processing facilities for an audit of the measures
referred to in paragraph 1.
Data exporter
The data exporter is the entity identified as “Customer” in the Addendum
Data importer
Heart Internet Limited
Data subjects
The processing operations are described in Appendix 1 of the Addendum.
Categories of data
The processing operations are described in Appendix 1 of the Addendum.
Processing operations
The processing operations are defined in Section 2.2 and Appendix 1 of the Addendum.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organisational security measures implemented by the data importer are as described in the Addendum, specifically in Appendix 2, which is incorporated and attached to it.
List of sub-processors are in Appendix 3 of the Addendum.
¹ Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.