DATA PROCESSING AGREEMENT

Last Updated: 8th April 2022

DATA PROCESSING AGREEMENT

This Data Processing Agreement including its annexes, schedules, and appendices (“Agreement”, “Data Processing Agreement”) will be effective and replace any previously applicable data processing terms and shall supersede all terms related to data processing included in AfterShip Privacy Policy and AfterShip Terms and Conditions as from the Effective Date.

Between:

(1) User, a company incorporated under the laws of the Data Controller Country with its User Registered Address (the “User”, “Data Controller” or the “Controller”); and

(2) AfterShip (“AfterShip”, the “Data Processor” or “Processor”)

(each a “Party” and collectively the “Parties”).

Recitals

A. The Data Controller provides goods and/or services. The Data Controller acts as the data controller of personal data in the course of providing the goods and services including personal data of its clients/end-users, personal data of its employees and representatives, and any other relevant personal data.

B. The Data Processor will process Personal Data on behalf of the Data Controller to enable the Data Processor to provide Services to the Data Controller pursuant to the Terms of Use (the “Purpose”), and the Data Controller will make Personal Data available to the Data Processor in connection with this Purpose.

C. The Parties intend that the processing activities carried out by the Data Processor on behalf of the Data Controller shall comply with the provisions of this Agreement.

1. Definitions

All terms in the present Agreement shall have the meaning attributed to them in the Terms of Use. Words and expressions used in this Agreement but not defined herein shall have the meanings given to such words and expressions in the Applicable Data Protection Laws.

In the present Agreement, when used with the initial letters capitalized, in addition to terms defined elsewhere in the Agreement, the following terms shall have the following meanings:

AfterShip, Data Processor, Processor means the applicable AfterShip Contracting Party (as defined in section 2 of the Terms of Use).

AfterShip Customers means any and all End-Users using the Application.

Applicable Data Protection Laws mean all worldwide data protection and privacy laws applicable to the Personal Data in question including namely (i) for EU Controller, the General Data Protection Regulation (2016/679) (“GDPR”), the 2002/58/EC Directive on Privacy and Electronic Communications, and other applicable EU and national laws and regulations and (ii) for International Controller, any and all data protection laws and regulations applicable to the Personal Data in question including namely the California Consumer Privacy Act of 2018 and its regulations ("CCPA") and the UK GDPR in each case as amended, superseded or replaced from time to time.

Application means the mobile software application of AfterShip which AfterShip Customers use to allow them to access, manage and process their Tracking Data.

Authorized Carriers means the carriers described in Schedule B which are independent controllers of the relevant Personal Data and to which Data Processor is authorized to transfer Personal Data.

Authorized Subprocessors means the subprocessors described in Schedule B which are expressly authorized by Data Controller to process the Personal Data.

Data Controller Country means the country under which the Data Controller is incorporated as included in its User Registered Address.

EEA/UK Adequate Countries are all countries (i) in respect of Personal Data which is subject to the GDPR, the European Economic Area and any other territory which the European Commission has determined ensures an adequate level of protection for Personal Data pursuant to Article 45 of the GDPR and (ii) in respect of Personal Data which is subject to the UK GDPR, the United Kingdom and any other territory which the UK Secretary of State has by regulations specified ensures an adequate level of protection for Personal Data pursuant to Article 45 of the UK GDPR and Section 17A of the UK Data Protection Act 2018.

Effective Date shall mean (i) the date on which the Data Controller accepted, or the parties otherwise agreed to, this Agreement as shown on the User Account or (ii) the date of the Service Order, whichever being applicable between the Parties.

End-User means any individual or entity whose Tracking Data is being processed by AfterShip as part of the Service provided to the User.

EU Controller means any User whose User Registered Address is situated in a member country of the European Union.

International Controller means any User whose User Registered Address is not situated in a member country of the European Union.

Personal Data means any information processed under this Agreement that relates to an identified or identifiable natural person. 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.

Restricted Transfer means a transfer of Personal Data that is subject to GDPR or UK GDPR outside of the EEA/UK Adequate Countries.

SCCs means the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021 ("EU SCCs") as may be amended, superseded, or replaced from time to time.

Tracking Data means any data included in the following categories of Personal Data: Shipping Information, Order Information, Tracking Information, Carrier Account Information, Returns Information, Customer Information.

UK SCCs means the standard data protection clauses for processors adopted pursuant to or permitted under Article 46 of the UK GDPR as may be amended, superseded, or replaced from time to time.

User Registered Address shall mean (i) the registered address of the User as shown in User Account or (ii) the registered address of the User as shown in the Service Order, whichever being applicable between the Parties.

2. Details of the Processing Operations

Data Processor will process, use, modify, collect and store the Personal Data within the meaning of Applicable Data Protection Laws. Data Processor will process Personal Data for the entire duration of the performance of the Services for Data Controller, and longer as may be required by law or to meet necessary retention periods.

The subject matter of the processing, including the processing operations, carried out by the Data Processor on behalf of the Data Controller and the instructions of the Data Controller to the Data Processor are described as follows.

2.1. Categories of Personal Data

The categories of Personal Data cover the following elements:

Shipping Information tracking number, carrier name, shipping method, box type, parcel weight, ship date, ship from address
Order Information order number, order value, order date, item name, item value, item amount, item weight
Customer Information customer name, customer email, customer phone number, customer's shipping address
User Information user name, user email, password, store name, store website, social media profiles, brand logo, marketing banner, payment information, carrier preferences, notification content, notification preferences, account settings
Tracking Information delivery status, delivery location, delivery date, signed by name, expected delivery date
Connected Email Information email content, email date
Carrier Account Information carrier account number, carrier account credentials
Label & Rates Information shipping label file, shipping rates, manifest file
Returns Information returns reason, returns method, resolution type, returns product images, refund amount, returns date

2.2 AfterShip Tracking

For AfterShip Tracking Services, the Processing covers:

(i). categories of Personal Data:

  • Order Information
  • Shipping Information
  • Customer Information
  • User Information
  • Tracking Information
  • Connected Email Information

(ii). categories of data subjects:

  • End-customers (all categories excluding User Information)
  • Merchant representatives (User Information only)

(iii). nature and purpose of the processing:

  • All Personal Data processing is linked to the use of the AfterShip Services in order to:

  • Help Users to provide a branded tracking experience to end customers

  • Help Users to send delivery emails or SMS notifications to end customers

  • Help Users to manage the delivery status of all shipments in one place

  • Help Users to monitor shipping performance

  • Help Users to customize tracking and notification experience

  • Any other relevant purpose

(iv) retention for Shipping Information and Tracking Information: 90-120 days.

2.3 Postmen

For Postmen Services, the Processing covers:

(i).categories of Personal Data:

  • Order Information
  • Shipping Information
  • Customer Information
  • User Information
  • Carrier Account Information
  • Label & Rates Information

(ii). categories of data subjects:

  • End-customers (all categories excluding User Information)

  • Merchant representatives (User Information only)

(iii). nature and purpose of the processing:

  • All Personal Data processing is linked to the use of the AfterShip Services in order to:

  • Help Users to generate and print shipping labels

  • Help Users to calculate and compare shipping rates

  • Help Users to manifest (i.e. send data to carriers)

  • Help Users to view shipping performance

  • Help Users to manage all carrier account information in one place

  • Any other relevant purpose.

2.4 AfterShip Returns Center

For AfterShip Returns Center Services, the Processing covers:

(i). categories of Personal Data:

  • Order Information

  • Shipping Information

  • Customer Information

  • User Information

  • Returns Information

  1. categories of data subjects: end-customers and merchant representatives
  • End-customers (all categories excluding User Information)

  • Merchant representatives (User Information only)

  1. nature and purpose of the processing:
  • All Personal Data processing is linked to the use of the AfterShip Services in order to:

  • Help Users to provide a branded returns experience to end customers

  • Help Users to send returns status updates notifications to end customers

  • Help Users to manage all returns request in one place

  • Help Users to monitor returns performance

  • Help Users to customize returns and notification experience

  • Any other relevant purpose.

2.5 Automizely

For Automizely Services, the Processing covers:

(i) categories of Personal Data:

  • Order Information

  • Customer Information

  • Shipping Information

  • User Information

  • Tracking Information

(ii) categories of data subjects:

  • End-customers (all categories excluding User Information)

  • Merchant representatives (User Information only)

(iii) nature and purpose of the processing:

  • All Personal Data processing is linked to the use of the AfterShip Services in order to:

  • Help end-customers to subscribe to merchant's newsletters

  • Help end-customers to find products easily with personalized product recommendations

  • Help end-customers to find products easily with an instant search bar

  • Help end-customers to get discount coupon codes through subscription to newsletters and other means

  • Help customers to browse products and checkout faster on Automizely's All-in-One Shopping app

  • Help merchants to send email newsletters and automated emails for marketing purposes

  • Help merchants to manage contacts and identify target customer segments.

  • Help merchants to show website popups, sales popups, and announcement bars on their websites

  • Help merchants to change website storefront easily (e.g. add a sales sticker on image)

  • Help merchants to send web push notifications

  • Help merchants to add an instant search bar to their website

  • Help merchants to list their store and products to Automizely's All-in-One Shopping app

  • Help merchants to issue and manage discount coupon codes

  • Any other relevant purpose.

3. Obligations of the Data Controller

3.1 The Data Controller determines the purposes for which Personal Data are being or will be processed and the manner in which they are being or will be processed.

3.2 The Controller shall abide by any Applicable Data Protection Laws.

3.3 The Data Controller acknowledges that with respect to Personal Data provided to the Data Processor pursuant to this Agreement, it shall comply with the following obligations:

3.3.1. implementing appropriate technical and, organizational measures to ensure and to be able to demonstrate that processing is performed in accordance with Applicable Data Protection Laws;

3.3.2. establishing a procedure for the exercise of the rights of the individuals whose Personal Data are collected;

3.3.3. only processing Personal Data that has been lawfully and validly collected and ensure that such Personal Data is relevant and proportionate to the respective uses;

3.3.4. process and collect all Personal Data in a valid and lawful manner, in accordance with the legal grounds prescribed by Applicable Data Protection Laws, in particular obtaining the necessary consents when required, for example when conducting direct marketing;

3.3.5. meet all transparency obligations, in particular, relative to the notification of the necessary informational elements to data subjects, including notably on the existence of international transfers and the recipients of Personal Data and demonstrate compliance with the transparency obligations by providing documentation to that effect to the Processor including any update, revision or other modification to said documents;

3.3.6. implementing appropriate technical and organizational measures suitable for protecting the Personal Data against any accidental or unlawful destruction, accidental loss, alteration, unauthorized or unlawful disclosure or access, in particular when the processing involves Personal Data transmission over a network, and against any other forms of unlawful or unauthorized processing, to ensure a level of security appropriate to the risk, in accordance with the requirements of Applicable Data Protection Laws, as well as with industry-standard; and

3.3.7. taking reasonable steps to ensure compliance with the provisions of the Applicable Data Protection Laws and this Agreement by its personnel and by any person accessing, processing, transferring or using Personal Data on its behalf.

4. Obligations of the Data Processor

4.1. The Processor undertakes to comply with all Applicable Data Protection Laws.

4.2. Data Processor shall:

4.2.1. taking into account the nature of the processing, assist Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Data Controller's obligation to respond to requests for exercising the data subject's rights under Applicable Data Protection Laws provided however that Data Processor may charge an additional fee for the administration of such requests;

4.2.2. assist Data Controller in ensuring compliance with the obligations under Applicable Data Protection Laws in relation to the security of processing, to the notification of any breach of Personal Data to supervisory authorities and data subjects where relevant, to the carrying out of data protection impact assessments where required and to prior consultation of the supervisory authority;

4.2.3. notify the Controller of any Personal Data breach relative to Personal Data processed under the Data Processing Agreement, within 48 hours after having become aware of it, unless the Personal Data breach is unlikely to result in a risk to the rights and freedoms of natural persons;

4.2.4. ensure that only those persons strictly necessary to perform the present Data Processing Agreement, acting under the authority of the Processor, have access to the Personal Data and are subject to the necessary confidentiality obligations.

4.2.5. at the choice of Data Controller, delete or returns all such Personal Data to Data Controller after the end of the provision of the Products and Services under the Agreement, and delete existing copies unless applicable law requires storage of the Personal Data;

4.2.6. make available to Data Controller all information necessary to demonstrate compliance with these obligations and allow for and contribute to audits in this respect, including inspections conducted by Data Controller or another auditor mandated by Data Controller; and

4.3. Audit and inspection costs and any unreasonable expenses for compliance with the foregoing obligations in this clause shall be borne by the Data Controller.

4.4. Data Processor represents and warrants that it processes all Personal Data in accordance with the Applicable Data Protection Laws. More specifically in this respect, Data Processor ensures that, as a processor, it shall process all Personal Data in accordance with the Applicable Data Protection Laws on valid legal grounds.

4.5. Data Processor has implemented appropriate technical and organizational measures as provided in Schedule A to ensure a level of security appropriate to the particular risks that are presented by Personal Data processing activities hereunder, in particular protecting Personal Data from an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed by the Processor.

5. Personal Data Transfers

5.1. Data Processor shall only process Personal Data on documented instructions from Data Controller, including with regard to transfers of Personal Data to a third country or an international organization unless required to do so by Applicable Data Protection Laws to which Data Processor is subject.

5.2. Data Controller expressly agrees that, in order for Data Processor to provide the Services, Data Processor is duly authorized to transfer Personal Data to its Affiliates, the Authorized Subprocessors and/or the Authorized Carriers in countries situated outside of the Data Controller Country and of EEA/UK.

5.3. To the extent that Data Processor transfers Personal Data (or permits the Personal Data to be transferred) to a country other than the country in which the Personal Data was first collected, it shall first take such measures as are necessary to ensure that the transfer is made in compliance with Applicable Data Protection Laws including, if applicable, taking all reasonable steps to implement one of the mechanisms foreseen under the Applicable Data Protection Laws to ensure an adequate level of protection for Personal Data processing activities.

5.4. To the extent that the transfer of Personal Data between Data Controller and Data Processor involves a Restricted Transfer, (i) in respect of Personal Data which is subject to GDPR, Schedule C shall be applicable or (ii) in respect of Personal Data which is subject to the UK GDPR, the UK SCCs shall be incorporated by this reference and form an integral part of this Agreement with Data Controller as "data exporter" and Data Processor as "data importer". For the purposes of the UK SCCs: (i) the Appendices and Annexes of the UK SCCs shall be populated with the relevant information set out in the Appendices and Annexes to this Addendum; and (ii) the UK SCCs shall be governed by the laws of and disputes shall be resolved before the courts of England and Wales. If and to the extent the SCCs or the UK SCCs, whichever is applicable, conflict with any provision of this Agreement regarding the transfer of Personal Data, the SCCs or the UK SCCs shall prevail to the extent of such conflict.

6. CCPA

To the extent the CCPA is applicable, Parties acknowledge that Data Controller's transfer of Personal Data to Data Processor is not a "sale" and that Data Processor provides no monetary or other valuable consideration to Data Controller in exchange for the Personal Data.

7. Authorized Subprocessors

7.1. Data Controller expressly agrees that Data Processor may use and engage the Authorized Subprocessors for carrying out processing activities. Any intended changes concerning the addition or replacement of these Authorized Subprocessors shall be notified to the Data Controller. The Data Controller can object to such changes by writing to [email protected]. All objections must be reasonably motivated. In such case, the Processor will take reasonable steps to accommodate the Data Controller, however in the case that a mutual agreement cannot be found, Data Processor can immediately terminate all Services to Data Controller without indemnification or further notice, notwithstanding any other provisions in the Agreement.

7.2. Where Data Processor engages an Authorized Subprocessor for carrying out specific processing activities on behalf of Data Controller, Data Processor shall impose on that Authorized Subprocessor data protection obligations at least as stringent as those set out herein, by way of a contract or other legal act under applicable law. Data Processor shall remain liable to Data Controller for the performance of the Authorized Subprocessor's obligations.

8. Authorized Carriers

Data Controller acknowledges that, in order for Data Processor to provide the Services, Data Processor shall be duly authorized to transfer Personal Data to the Authorized Carriers and that said Authorized Carriers are an independent controller of the relevant Personal Data and processes said Personal Data in accordance with (i) their own personal data policies and/or (ii) the applicable data processing agreement concluded between Data Controller and the Authorized Carriers. Data Processor shall not be liable to Data Controller for the processing activities carried out by Authorized Carriers.

9. AfterShip Application

The Data Controller recognizes that the Processor shall process Tracking Data upon AfterShip Customer’s request through the Application. This Processing based on AfterShip Customer’s request shall not be subject to this Agreement

Any set of Tracking Data processed upon AfterShip Customer’s request shall be deemed under the control of AfterShip for the performance of AfterShip Customer’s requests through the Application. The User acknowledges that in the framework of the performance of AfterShip Customer’s requests through the Application, AfterShip shall be considered as an independent controller regarding the specific set of Tracking Data being processed. In this respect, AfterShip shall exercise the requisite rights and obligations as Controller.

10. Limitation of liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL THE DATA PROCESSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF THE DATA PROCESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF THIS DATA PROTECTION AGREEMENT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL THE DATA PROCESSOR'S ENTIRE LIABILITY (INCLUDING LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY, OR OTHERWISE) TO THE DATA CONTROLLER EXCEED THE FEES PAID BY THE DATA CONTROLLER FOR THE SERVICES DURING THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE CLAIM FOR SUCH LIABILITY.

THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED ARISING OUT OF OR IN CONNECTION WITH DATA TRANSFERS AND DATA PROCESSING OF THE AUTHORIZED SUBPROCESSORS AND AUTHORIZED CARRIERS.

11. Other provisions

11.1. This Data Processing Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Singapore.

11.2. The parties to this Agreement irrevocably agree that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Data Processing Agreement or its subject matter or formation (including non-contractual disputes or claims).

11.3. This Agreement, together with the schedules, annexes, and appendices thereto the Terms of Use and the Service Order contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, schedules, annexes, and appendices.

11.4. In the event of any conflict or inconsistency between the terms and provisions of this Data Processing Agreement and the terms and provisions of the Master Services Agreement or the Terms of Use, the terms and provisions of this Data Processing Agreement shall govern and control.

SCHEDULE A

Technical and Organizational Security Measures

In accordance with Clause 4 of the Agreement, the Data Processor will adopt and maintain appropriate (including organizational and technical) security measures in dealing with the Data in order to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of such Data, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. In determining the technical and organizational security measures required by Clause 4 of the Agreement, the Data Processor will take account of the state of the art, the costs of implementation and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.

The Data Processor will implement the following specific security measures, as applicable:

AFTERSHIP

SPECIFICATION OF THE SECURITY MEASURES

Category Subcategory Relevant Security Issue AfterShip Implementation
Privacy / Security Data Retention and Storage Data storage All data, including collecting personal data, are stored on the cloud through Amazon Web Services and Google Cloud Platform. The data centers hosting the cloud services are located in the USA.
Privacy / Security Data Retention and Storage Personal data retention and erasure There are defined retention periods for collecting personal data. If the personal data are no longer required to be retained, they are systematically destroyed and/or anonymized.
Security Access Control Management Implemented password policies, password controls \ Encryption/hashing of passwords “One Password” is used for the management of user authentication and password management. The passwords policy is implemented as follows: \ - Minimum password length: 15 characters \ - Combinations of characters, symbols, and numbers \ - 2FA is required for access to Google services, Github, and Amazon web services \ Passwords are hashed by the SHA-1 algorithm with a random salt.
Security Access Control Management Immediate removal of access rights for users leaving the organization Employee off-boarding procedures are in place to ensure employees' access rights are removed when leaving
Security Business Continuity Management Backup policies and frequency A daily backup performed by Amazon Web services at primary and secondary data centers
Security Business Continuity Management Disaster recovery sites in multiple/diverse geographic locations The data centers hosting the cloud services are located in different locations across the USA (Central region and East region).
Privacy / Security Governance Security awareness training program currently in place: topics and frequency Basic security awareness training when onboarding employees

Topics: general obligations under various information security policies, standards, procedures, guidelines, laws, regulations, contractual terms, and standards of ethics and acceptable behavior.

Privacy / Security Incident Response Management -Incident response procedures in place \ -Existence of a team with defined roles and responsibilities \ - Existence of communication procedures regarding security incidents such as data breaches? \ -Notification timeframe regarding third-parties Data breach response plan in place (Detect, Contain, Analyse, Notify, Respond, Document, Learn) \

Data breach response team checklist, with defined \ roles and responsibilities

SCHEDULE B

List of Authorized Subprocessors

The following Authorized Subprocessors: https://www.aftership.com/legal/subprocessors

List of Authorized Carriers

The following Authorized Carriers: https://docs.aftership.com/api/4/supported-couriers

Schedule C

Data Protection Annex (Direct Model Clauses)

This Schedule to the Data Processing Agreement (“Agreement”) (“Schedule” or the “Clauses”) is effective as of Effective Date between EU Controller with its registered office at User Registered Address (“Data Exporter”), and AfterShip as defined in the Data Processing Agreement (“Data Importer”).

RECITALS

  1. The Data Exporter is engaged in the business of providing goods and/or services.
  2. The Data Importer provides certain services to the Data Exporter and the provision of such services requires the transfer of personal data from the Data Exporter to the Data Importer.
  3. To enhance the level of protection afforded to personal data transferred by the Data Exporter to the Data Importer, the Parties wish to enter into the standard contractual clauses approved by the European Commission in decision 2021/914/EU.

The Parties have agreed on the following Contractual 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 1.

1. Purpose and scope

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) (1) for the transfer of personal data to a third country.

(a) The Parties:

  1. 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
  2. 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’).

(b) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(c) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

2. Effect and invariability of the Clauses

  1. 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.
  2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

3. Third-party beneficiaries

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7
    2. Clause 8.1(b), 8.9(a), (c), (d) and (e)
    3. Clause 9(a), (c), (d) and (e)
    4. Clause 12(a), (d) and (f)
    5. Clause 13
    6. Clause 15.1(c), (d) and (e)
    7. Clause 16(e)
    8. Clause 18(a) and (b).
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

4. Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. Where these Clauses use terms that are defined in the data processing agreement, those terms shall have the same meaning as in that data processing agreement.
  3. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  4. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

5. 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.

6. 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.

7. Docking clause

  1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
  2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
  3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

8. 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 organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

  1. 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.
  2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

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.

8.3 Transparency

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 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.

8.4 Accuracy

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.

8.5 Duration of processing and erasure or return of 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).

8.6 Security of processing

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due to an 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In the case of pseudonymization, 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 organizational 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.
  2. 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.
  3. 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.
  4. 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.

8.7 Sensitive data

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.

8.8 Onward transfers

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 (4) (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:

  1. 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;
  2. 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;
  3. 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
  4. 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.

8.9 Documentation and compliance

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

9. Use of sub-processors

  1. GENERAL WRITTEN AUTHORISATION. 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 [Specify time period] 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.
  2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), 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. (9) 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.
  3. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. 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.
  4. 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.
  5. 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.

10. Data subject rights

  1. 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.
  2. 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.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

11. Redress

  1. 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.
  2. 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.
  3. 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:
  4. 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;
  5. refer the dispute to the competent courts within the meaning of Clause 18.
  6. 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.
  7. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  8. 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.

12. Liability

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

13. Supervision

  1. Where the data exporter is established in an EU Member State: 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.
  2. 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.

14. Local laws and practices affecting compliance with the Clauses

  1. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination are applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. 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;
    2. 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 (12);
    3. 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.
  3. 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.
  4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  5. 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).
  6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational 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.

15. Obligations of the data importer in case of access by public authorities

15.1 Notification

  1. 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:
    1. 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
    2. 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.
  2. 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 the request of the data exporter.
  3. 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.).
  4. 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.
  5. 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.

15.2 Review of legality and data minimization

  1. 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).
  2. 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.
  3. 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.

16. Non-compliance with the Clauses and termination

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

    1. 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;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. 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.

  4. 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.

  5. 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.

17. Governing law These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Belgium.

18. Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of Belgium.
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

Appendix

ANNEX I

This Annex I forms part of Schedule B and must be completed and signed by the parties.

A. LIST OF PARTIES

Data Exporter

The Data Exporter is a controller incorporated in the Data Controller Country. The Data Exporter name, address (User Registered Address) and contact information is included in its User Account (as defined in the Terms of Use) or in the Service Order, whichever is applicable.

Data Importer

The Data Importer is a processor and provides services to the Data Exporter. The Data Processor name, address, and contact information are included in the Terms of Use.

B. DESCRIPTION OF TRANSFER

Data subjects

The Personal Data transferred concern the following categories of data subjects:

Please refer to the Data Processing Agreement.

Categories of data

The Personal Data transferred is:

Please refer to the Data Processing Agreement.

Such personal data may be in the following forms:

Please refer to the Data Processing Agreement.

Special categories of data

The personal data transferred may concern the following special categories of data: N/A

Processing operations

The personal data transferred may be subject to the following processing activities:

Please refer to the Data Processing Agreement.

Frequency of the transfer

Continuous

Nature of the processing

Nature of the processing:

Please refer to the Data Processing Agreement.

Period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Please refer to the Data Processing Agreement.

C. COMPETENT SUPERVISORY AUTHORITY

The national independent data protection supervisory body of the Data Controller Country.

ANNEX 2 - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

This Annex 2 forms part of Schedule C and must be completed and signed by the parties.

Description of the technical and organizational security measures implemented by the Data Importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): As detailed in Schedule A of the Agreement.

ANNEX 3 - LIST OF SUBPROCESSORS

Description of the list of subprocessors: As detailed in Schedule B of the Agreement.