VBOUT is making its Standard Contractual Clauses Addendum generally available for signature here.

1. Introduction

1.1 This agreement related to processing of personal data (the ”Data Processor Agreement”) regulates VBOUT Inc., a Delaware corporation established on May 29, 2014 and existing under the laws of the State of Delaware, registered under No. 55418-16 (the ”Data Processor”) processing of personal data on behalf of the client (the ”Data Controller”) and is attached as appendix A to the SaaS Services Agreement (the ”Main Agreement”), in which the parties have agreed the terms for the Data Processor’s delivery of services to the Data Controller (the ”Main Services”).

2. Legislation

2.1 The Data Processor Agreement shall ensure that the Data Processor complies with the applicable data protection and privacy legislation (the” Applicable Law”), including in particular:

  1. (i)  The European Parliament and the Council’s Directive 95/46/EF 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 as implemented in Danish law with, among others, the Act on Processing of Personal Data (Act No. 429 of 31 May 2000).
  2. (ii)  The European Parliament and the Council’s Regulation 2016/679 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 that entered into force on 24 May 2016 and will be applicable on 25 May 2018 (“GDPR”). Irrespective of the general use and reference to GDPR in this Data Processor Agreement, the parties are not obliged to comply with GDPR before 25 May 2018.

3. Processing of personal data

3.1 In connection with the Data Processor’s delivery of the Main Services to the Data Controller, the Data Processor will process certain categories and types of the Data Controller’s personal data on behalf of the Data Controller.

3.2 ”Personal data” include “any information relating to an identified or identifiable natural person” as defined in GDPR, article 4 (1) (1) (the ”Personal Data”). The categories and types of Personal Data processed by the Data Processor on behalf of the Data Controller are listed in sub-appendix A. The Data Processor only performs processing activities that are necessary and relevant to perform the Main Services. The parties shall update sub-appendix A whenever changes occur that necessitates an update.

3.3 The Data Processor shall have and maintain a register of processing activities in accordance with GDPR, article 32 (2).

3.4 The Data Processor processes personal data about the Data Controller and the Data Controller’s employees in connection with the Data Processor’s sale, marketing and product development. These personal data are not comprised by this Data Processor Agreement, because the Data Processor is data controller for said personal data, and reference is made to the Data Processor’s data protection and privacy policy available at the Data Processor’s website.

4. Instruction

4.1 The Data Processor may only act and process the Personal Data in accordance with the documented instruction from the Data Controller (the” Instruction”). The Instruction at the time of entering into this Data Processor Agreement is that the Data Processor may only process the Personal Data with the purpose of delivering the Main Services as described in the Main Agreement.

4.2 The Data Controller guarantees that the Personal Data transferred to the Data Processor is processed by the Data Controller in accordance with the Applicable Law, including the legislative requirements regarding the lawfulness of processing.

4.3 The Data Processor shall give notice without undue delay if the Data Processor considers the “at the time being Instruction” to be in conflict with the Applicable Law.

5. The Data Processor's obligations

5.1 Confidentiality

5.1.1 The Data Processor shall treat all the Personal Data as strictly confidential information. The Personal Data may not be copied, transferred or otherwise processed in conflict with the Instruction, unless the Data Controller in writing has agreed hereto.

5.1.2 The Data Processor’s employees shall be subject to an obligation of confidentiality that ensures that the employees shall treat all the Personal Data under this Data Processor Agreement with strict confidentiality.

5.2 Security

5.2.1 The Data Processor shall implement the appropriate technical and organizational measures as set out in this Agreement and in the Applicable Law, including in accordance with GDPR, article 32.

5.3 The Data Processor shall ensure that access to the Personal Data is restricted to only the employees to whom it is necessary and relevant to process the Personal Data in order for the Data Processor to perform its obligations under the Main Agreement and this Data Processor Agreement.

5.4 The Data Processor shall also ensure that the Data Processor’s employees working and processing the Personal Data only processes the Personal Data in accordance with the Instruction.

5.4.1 The Data Processor shall provide documentation for the Data Processor’s security measures if requested by the Data Controller in writing.

5.5 Data protection impact assessments and prior consultation

5.5.1 If the Data Processor’s assistance is necessary and relevant. The Data Processor shall assist the Data Controller in preparing data protection impact assessments in accordance with GDPR, article 35, along with any prior consultation in accordance with GDPR, article 36.

5.6 Rights of the data subjects

5.6.1 If the Data Controller receives a request from a data subject for the exercise of the data subject’s rights under the Applicable Law and the correct and legitimate reply to such a request necessitates the Data Processor’s assistance, the Data Processor shall assist the Data Controller by providing the necessary information and documentation. The Data Processor shall be given reasonable time to assist the Data Controller with such requests in accordance with the Applicable Law.

5.6.2 If the Data Processor receives a request from a data subject for the exercise of the data subject’s rights under the Applicable Law and such request is related to the Personal Data of the Data Controller, the Data Processor must immediately forward the request to the Data Controller and must refrain from responding to the person directly.

5.7 Personal data breaches

5.7.1  The Data Processor shall give immediate notice to the Data Controller if a breach of the data security occurs, that can lead to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, personal data transmitted, stored or otherwise processed regarding the Personal Data processed on behalf of the Data Controller (a “Personal Data Breach”).

5.7.2 The Data Processor shall have and maintain a register of all Personal Data Breaches. The register shall at a minimum include the following:

  1. (i) A description of the nature of the Personal Data Breach, including, if possible, the categories and the approximate number of affected Data Subjects and the categories and the approximate number of affected registrations of personal data.
  2. (ii)  A description of the likely as well as actually occurred consequences of the Personal Data Breach.
  3. (iii)  A description of the measures that the Data Processor has taken or proposes to take to address the Personal Data Breach, including, where appropriate, measures taken to mitigate its adverse effects.

5.7.3 The register of Personal Data Breaches shall be provided to the Data Controller in copy if so requested in writing by the Data Controller or the relevant Data Protection Agency.

5.8 Documentation of compliance

5.8.1 The Data Processor shall after the Data Controller’s written request hereof provide documentation substantiating that:

  1. (i)  the Data Processor complies with its obligations under this Data Processor Agreement and the Instruction; and
  2. (ii)  the Data Processor complies with the Applicable Law in respect of the processing of the Data Controller’s Personal Data.

5.8.2 The Data Processor’s documentation of compliance shall be provided within reasonable time.

5.9 Location of the personal data

5.9.1 The Personal Data is only processed by the Data Processor at the Data Processor’s address. The Data Processor does not transfer the Personal Data to third countries or international organizations.

5.9.2 Any transfer of the Personal Data to any third countries or international organizations in the future shall only be done to the extent such transfer is permitted and done in accordance with the Applicable Law.

6. Sub-Processors

6.1 The Data Processor is given general authorization to engage third-parties to process the Personal Data (“Sub-Processors”) without obtaining any further written, specific authorization from the Data Controller, provided that the Data Processor notifies the Data Controller in writing about the identity of a potential Sub-Processor (and its processors, if any) before any agreements are made with the relevant Sub-Processors and before the relevant Sub-Processor processes any of the Personal Data. If the Data Controller wish to object to the relevant Sub- Processor, the Data Controller shall give notice hereof in writing within seven (7) calendar days from receiving the notification from the Data Processor. Absence of any objections from the Data Controller shall be deemed a consent to the relevant Sub-Processor.

6.2 The Data Processor shall conclude a written sub-processor agreement with any Sub-Processors. Such an agreement shall at minimum provide the same data protection obligations as the ones applicable to the Data Processor, including the obligations under this Data Processor Agreement. The Data Processor shall on an ongoing basis monitor and control its Sub- Processors’ compliance with the Applicable Law. Documentation of such monitoring and control shall be provided to the Data Controller if so requested in writing.

6.3 The Data Processor is accountable to the Data Controller for any Sub-Processor in the same way as for its own actions and omissions.

6.4 The Data Processor is at the time of entering into this Data Processor Agreement using the Sub- Processors listed in sub-appendix B. If the Data Processor initiates sub-processing with a new Sub-Processor, such new Sub-Processor shall be added to the list in sub-appendix B under paragraph 2.

7. Renumeration and costs

7.1 The Data Controller shall remunerate the Data Processor based on time spent to perform the obligations under section 5.5, 5.6, 5.7 and 5.8 of this Data Processor Agreement based on the Data Processor’s hourly rates.

7.2 The Data Processor is also entitled to remuneration for any time and material used to adapt and change the processing activities in order to comply with any changes to the Data Controller’s Instruction, including implementation costs and additional costs required to deliver the Main Services due to the change in the Instruction. The Data Processor is exempted from liability for non-performance with the Main Agreement if the performance of the obligations under the Main Agreement would be in conflict with any changed Instruction or if contractual delivery in accordance with the changed Instruction is impossible. This could for instance be the case; (i) if the changes to the Instruction cannot technically, practically or legally be implemented; (ii) where the Data Controller explicitly requires that the changes to the Instruction shall be applicable before the changes can be implemented; and (iii) in the period of time until the Main Agreements is changed to reflect the new Instruction and commercial terms hereof.

7.3 If changes to the Applicable Law, including new guidance or courts practice, result in additional costs to the Data Processor, the Data Controller shall indemnify the Data Processor of such documented costs.

8. Breach and liability

8.1 The Main Agreement’s regulation of breach of contract and the consequences hereof shall apply equally to this Data Processor Agreement as if this Data Processor Agreement is an integrated part hereof.

8.2 Each party’s cumulated liability under this Data Processor Agreement is limited to the payments made under the Main Agreement in the 12 months before the occurrence of the circumstances leading to a breach of contract. If the Data Processor Agreement has not been in force for 12 months before the occurrence of the circumstances leading to a breach of contract, the limited liability amount shall be calculated proportionately based on the actual performed payments.

8.3 The limitation of liability does not apply to the following:

  1. (i) Losses as a consequence of the other party’s gross negligence or willful misconduct.
  2. (ii) A party’s expenses and resources used to perform the other party’s obligations, including payment obligations, towards a relevant data protection agency or any other authority.

9. Duration

9.1 The Data Processor Agreement shall remain in force until the Main Agreement is terminated.

10. Termination

10.1 The Data Processor’s authorization to process Personal Data on behalf of the Data Controller shall be annulled at the termination of this Data Processor Agreement or the termination of the Main Agreement..

10.2 The Data Processor shall continue to process the Personal Data for up to three months after the termination of the Data Processor Agreement to the extent it is necessary and required under the Applicable Law. In the same period, the Data Processor is entitled to include the Personal Data in the Data Processor’s backup. The Data Processor’s processing of the Data Controller’s Personal Data in the three months after the termination of this Data Processor Agreement shall be considered as being in accordance with the Instruction.

10.3 At the termination of this Data Processor Agreement, the Data Processor and its Sub- Processors shall return the Personal Data processed under this Data Processor Agreement to the Data Controller, provided that the Data Controller is not already in possession of the Personal Data. The Data Processor is hereafter obliged to delete all the Personal Data and provide documentation for such deletion to the Data Controller.

11. Contact

1.1 The contact information for the Data Processor and the Data Controller is provided in the Main Agreement.

Sub-appendix A

1. Personal data

1.1 The Data Processor processes the following types of Personal Data in connection with its delivery of the Main Services:

(i)  Ordinary contact information on relevant employees from the Data Controller.

(ii)  Users of the Main Services: names, telephone numbers, e-mails and user type.

(iii)  Personal data provided by the users in connection with their use of the Main Services (these personal data are not seen or accessed by the Data Processor unless the Data Processor after the request hereof from the Data Controller assists with support and bug fixing).

 

2. Categories of data subjects

2.1 The Data Processor processes Personal Data about the following categories of data subjects on behalf of the Data Controller:

    1. (i)  Customers
    2. (ii)  End-users

Sub-appendix B

  1. Approved Sub-Processors

    1.1 The following Sub-Processors shall be considered approved by the data Controller at the time of entering into this Data Processor Agreement:

Entity Name Purpose Applicable Services Entity Country
Intercom Inc. VBOUT Live Chat Agent runs over Intercom, Inc (“Intercom”). Intercom has access to VBOUT Client’s basic information which are: Name, email, phone, company, Ip address, website visits and user agent. Intercom also processes communications contained in the messages and the ticket requests between VBOUT users and VBOUT’s support team. VBOUT Support United States
Cloudflare, Inc. Cloudflare, Inc. (“Cloudflare”) provides content distribution, security and DNS services for web traffic transmitted to and from the Services. This allows VBOUT to efficiently manage traffic and secure the Services. The primary information Cloudflare has access to is information in and associated with the VBOUT website URL that the End-User is interacting with (which includes End-User IP address). All information (including Service Data) contained in web traffic transmitted to and from the Services is transmitted through Cloudflare’s systems, but Cloudflare does not have access to this information. All United States
Woopra Woopra, Inc. (“Woopra”) is a third-party analytics provider that VBOUT uses to capture how users interact with the Service. VBOUT uses this information to analyze and improve the Services. The primary information Woopra has access to is information in and associated with the VBOUT website URL that the Client and End-User is interacting with, such as time spent on page, items clicked (including Service Data contained in those items), Client email addresses, End-User email addresses, etc. All United States
Pipedrive Pipedrive is a cloud-based sales software company accessible as a web application and mobile app. It is considered a customer relationship management tool (CRM) for salespeople in scaling companies. Main User Accounts United States
Zapier Zapier is an American for-profit corporation and a web-based service that allows end users to integrate the web applications they use. All United States
Authorize.Net Authorize.Net is a United States-based payment gateway service provider, allowing merchants to accept credit card and electronic check payments through their website and over an Internet Protocol connection. Founded in 1996, Authorize.Net is now a subsidiary of Visa Inc. Main User Accounts United States

Sub-appendix C

Standard Contractual Clauses

Under European data protection law, companies that transfer personal data outside of the EU must have a legal basis to ensure the continued protection of such data. Until the Schrems Decision, data transferring legal framework relied on standard contractual clauses and the EU-US Privacy Shield framework.

The CJEU confirmed the validity of the European Commission’s standard contractual clauses as a legal mechanism for the transfer of EU personal data, but invalidated the EU-US Privacy Shield framework. Based on that, VBOUT’s customers may continue to use VBOUT’ services relying on the following Standard Contractual Clauses.

The European Commission’s Standard Contractual Clauses (“SCCs”) are legal contracts entered into between parties that are transferring EU personal data outside of the EU.

This Standard Contractual Clauses sub-appendix forms part of the Data Protection Agreement between VBOUT Inc., (VBOUT) and _________________________ (“Customer”) and it will be effective as of the date of the last signature below.

Parties agree that this SCCs sub-appendix C will integrate any other data protection agreement parties may have agreed. In the event of a clash between SCCs and data protection agreement, the SCCs will prevail.

The standard contractual clauses offer adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of data subjects and as regards the exercise of the corresponding rights as required by Article 26(2) of Directive 95/46/EC and Article 44 of General Data Protection Regulation (GDPR)

For the purpose of EU Commission’s SCCs, two following definitions apply:

  • ‘Data exporter’ means the controller who transfers the personal data;
  • Data importer’ means the processor established in a third country who agrees to receive from the data exporter personal data intended for processing on the data exporter’s behalf.

Data exporter and the data importer are free to include any other clauses on business related issues which they consider as being pertinent for the contract as long as they do not contradict the standard contractual clauses.

Data-exporter-and-data-importer

These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).

Standard Contractual Clauses (Processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organization: ________________________________

Address: ________________________________________________________

Email Address: ____________________________________________________

(the data exporter)

 

And

Name of the data importing organization:

Address:

Email Address:

(the data importer)

Each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a)         ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b)         ‘the data exporter’ means the controller who transfers the personal data;

(c)          ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d)         ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e)         ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)           ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1.         The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2.         The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.         The data subject can enforce against the 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 subprocessor shall be limited to its own processing operations under the Clauses.

4.         The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a)         that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b)         that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c)          that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

(d)         that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e)         that it will ensure compliance with the security measures;

(f)           that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g)         to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h)         to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i)           that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j)           that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a)         to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b)         that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c)          that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d)         that it will promptly notify the data exporter about:

(i)           any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii)          any accidental or unauthorized access, and

(iii)         any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

(e)         to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f)           at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g)         to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

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

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

(j)           to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1.         The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2.         If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3.         If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity.

The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1.       The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2.       The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1.      The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2.      The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3.    The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case, the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

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

Clause 10

Variation of the contract

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

Clause 11

Subprocessing

1.      The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor, which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

2.   The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3.  The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4.  The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

 

On behalf of the data exporter

Name (written out in full): ________________________________

Position: _____________________________________________

Address: _____________________________________________

Other information necessary in order for the contract to be binding (if any): _______________________________

Signature: _____________________________

 

On behalf of the data importer

Name (written out in full): ________________________________

Position: _____________________________________________

Address: _____________________________________________

Other information necessary in order for the contract to be binding (if any): _______________________________

Signature: _____________________________

 

Data exporter=

The data exporter is (please specify briefly your activities relevant to the transfer):

VBOUT’s customer that uses VBOUT services (as defined below) to export data from European Union and third country

 

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

VBOUT, inc. is a provider of lead generation and marketing automation solutions which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.

 

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

  • Prospects, customers, business partners and vendors of data exporter (who are natural persons);
  • Employees or contact persons of data exporter’s prospects, customers, business partners and
  • Vendors or Third party recipients;
  • Employees, agents, advisors, freelancers of data exporter (who are natural persons)
  • Data exporter’s Users authorized by data exporter to use the Services

 

Categories of data

The personal data transferred concern the following categories of data (please specify):

Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

  • Name (forename, middle name(s) and surname), birth name, maiden name or any additional names, address, title, preferred salutation;
  • Title;
  • Position;
  • Employer;
  • Contact information (company, email, phone, physical business address);
  • IP address, browser generated information, device information, geo-location markers and other digital identifiers;
  • Professional life data including occupation, employer, employment status, income, and other occupation or income related data;
  • Personal life data including marital status, lifestyle, hobbies and interests, and other background data and relationship management information;
  • Connection data including network address, address of the remote instance’s Communications Server, and the network protocol by which the local and remote instances communicates;
  • Localization data

 

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

The personal data transferred may include limited types of biometric data.

Data exporter may submit special categories of data to the SCC Services, the extent of which is determined and controlled by the data exporter in its sole discretion. Given the special nature of such data, the data exporter shall be compliant with Article. 9 GDPR and data importer shall rely on such compliance.

 

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

 

Data exporter’s instructions: Data importer will only act upon data exporter’s instructions as further described in the Contract;

In general, the personal data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing services to data exporter in accordance with the terms of the Agreement.

DATA EXPORTER

Name: ______________________________

Authorized Signature: __________________

 

DATA IMPORTER

Name: ________________________________

Authorized Signature: ____________________

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

Data importer will maintain a written and comprehensive information security program, which includes appropriate physical, technical, and administrative controls to protect the security, integrity, confidentiality, and availability of Personal Data, including without limitation, protecting Personal Data against any unauthorized or unlawful acquisition, access, use, disclosure, or destruction. If the parties have executed a data security exhibit or similar agreement, data importer will comply with the physical, technical, and administrative controls set forth therein.

Data importer will not materially reduce the commitments, protections or overall level of security provided to data exporter as described herein

 

 

DATA EXPORTER

Name: ______________________________

Authorized Signature: __________________

 

DATA IMPORTER

Name: _________________________________

Authorized Signature: _____________________

 

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