Data Processing Agreement

This Data Processing Agreement is entered into between us and the Customer and is incorporated into and governed by the terms of the Customer Terms.

1.       Definitions

Any capitalised term not defined in this DPA shall have the meaning given to it in the Customer Terms.

“Customer Terms” means the agreement between us and the Customer for the provision of the Services
“Controller” means the Customer
“Data Protection Law” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom any amendments, replacements or renewals thereof, applicable to the processing of Personal Data, including where applicable the Data Protection Act 2018, the GDPR and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);
“Data Subject” has the same meaning as in Data Protection Law
“DPA” means this data processing agreement together with the Security Documentation and the Standard Contractual Clauses
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
“Personal Data” means any information relating to a Data Subject and which is processed by the Processor on behalf of the Controller in connection with the Customer Terms
“Processor” means us
“Security Documentation” means the security documents located at https://www.support.victvsv3.com/security as amended from time to time, or as otherwise made available by the Processor to the Controller
“Standard Contractual Clauses” means the EU model clauses for personal data transfer from controllers to processors c2010-593 – Decision 2010/87EU set out in Schedule 2 or any document from the EU Commission that replaces them
“Subsidiary” means any entity that directly or indirectly controls, is controlled by, or is under common control of a party.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party
“Sub-Processor” means any person or entity engaged by us (including a Subsidiary) to process Personal Data in the provision of the Services to the Customer.

 

2.       Purpose

The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Customer Terms.  In providing the Services, the Processor shall process Customer Data on behalf of the Controller.  Customer Data may include Personal Data.  The Processor will process and protect such Personal Data in accordance with the terms of this DPA.

3.       Scope

In providing the Services to the Controller pursuant to the terms of the Customer Terms, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Customer Terms and the Controller’s instructions documented in the Customer Terms and this DPA, as may be updated from time to time.

The Controller and Processor shall take steps to ensure that any natural person acting under the authority of the Controller or the Processor who has access to Personal Data does not process them except on instructions from the Controller unless they are required to do so by any Data Protection Law.

4.       Processor Obligations

The Processor may collect, process or use Personal Data within the scope of this DPA.

The Processor confirms that it shall process Personal Data on behalf of the Controller.

The Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller, breach any Data Protection Law.

The Processor shall ensure that all employees, agents, officers and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.

The Processor shall implement appropriate technical and organisational procedures to protect Personal Data, taking into account current best practice, 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 Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.  In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

The technical and organisational measures detailed in the Security Documentation shall be at all times adhered to as a minimum-security standard.  The Controller accepts and agrees that the technical and organisational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in the attachments to this DPA provided that such updates and modifications do not result in the degradation of the overall security of the Services.

Where Personal Data relating to an EU or UK Data Subject is transferred outside of the EEA it shall be processed in accordance with the Standard Contractual Clauses, unless the processing: (i) takes place in a third country or territory recognised by the EU Commission or UK Secretary of State (as the case may be) to have an adequate level of protection; or (ii) is by an organisation located in a country or territory which has other legally recognised appropriate safeguards in place.

Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.

5.       Controller Obligations

The Controller represents and warrants that it shall comply with the terms of the Customer Terms, this DPA and its obligations under Data Protection Law.

The Controller represents and warrants that it has obtained any and all necessary permissions and authorisations necessary to permit the Processor, its Subsidiaries and Sub-Processors, to execute their rights or perform their obligations under this DPA.

The Controller is responsible for compliance with Data Protection Law, including requirements with regards to the transfer of Personal Data under this DPA and the Customer Terms.

All Subsidiaries of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.

The Controller has their own obligations to implement their own appropriate technical and organisational procedures to protect Personal Data, taking into account 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 Controller shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.  In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement.  The Controller acknowledges and agrees that the Processor will process the request to the extent it is lawful and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.

The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data from the Processor, may result in additional fees.  In such case, the Processor will notify the Controller of such fees in advance which will be paid by the Controller on presentation of invoice.

6.       Sub-Processors

The Controller acknowledges and agrees that: (i) Subsidiaries of the Processor may be used as Sub-Processors; and (ii) the Processor and its Subsidiaries respectively may engage Sub-Processors in connection with the provision of the Services.

All Sub-Processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor similar to those set out in this DPA.

The Controller authorises the Processor to use the Sub-Processors already engaged by the Processor as at the date of this Agreement.

All Sub-Processors who process Personal Data shall comply with the obligations of the Processor set out in this DPA.

The Processor shall, prior to the relevant Sub-Processor carrying out any processing activities in respect of the Personal Data; (i) appoint each Sub-Processor under a written contract containing materially the same obligations to those of the Processor in this DPA enforceable by the Processor; and (ii) ensure each such Sub-Processor complies with all such obligations.

The Controller agrees that the Sub-Processors may transfer Personal Data for the purpose of providing the Services to the Controller in accordance with the Agreement to countries outside the European Economic Area (EEA).  The Processor confirms that such Sub-Processors: (i) are located in a third country or territory recognised by the EU Commission or the UK Secretary of State (as the case may be) to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with the Processor; or (iii) have other legally recognised appropriate safeguards in place.

7.       Liability

The limitations on liability set out in the Customer Terms apply to all claims made pursuant to any breach of the terms of this DPA.

The Parties agree that the Processor shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Sub-processors to the same extent the Processor would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the Customer Terms.

The Parties agree that the Controller shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Subsidiaries as if such acts, omissions or negligence had been committed by the Controller itself.

8.       Audit

The Processor shall, at its own cost, make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.

Any audit conducted under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in this Agreement.  In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may at its own expense conduct a more extensive audit which will be: (i) limited in scope to matters specific to the Controller and agreed in advance with the Processor; (ii) carried out during UK business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iii) conducted in a way which does not interfere with the Processor’s day-to-day business.  The Processor may charge a fee (based on its reasonable time and costs) for assisting with any audit.  The Processor will provide the Controller with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.

This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.

9.       Data Deletion

The Processor will enable the Controller to delete Personal Data using the functionality provided by the Service.  For certain deletions, a recovery feature is offered by the Processor to enable recovery from accidental deletions for up to 30 days.  This may be overridden by the Controller.  After any recovery period, the Processor will permanently delete the Personal Data from the live systems.

On termination, the Controller has the option to request the return or deletion of Personal Data.  This request must be made within 14 days of termination.  The Processor will make the data available for download by the Controller in a machine-readable format.  The Processor will permanently delete the Personal Data from the live systems in any event within 14 days.

Following permanent deletion from the live systems, partial data resides on the Processor’s backup systems in accordance with its then current data back-up policy.  If requested by the Controller, the Processor may be able to assist with recovery of partial data from these backups during this period.  A fee may be charged for this service.

10.   Notification of Data Breach

The Processor shall notify the Controller without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Personal Data (“Data Breach“).

The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach and to assist the Controller in meeting the Controller’s obligations under applicable law.

The Processor’s notification of, or response to, a Data Breach under this Section 10 will not be construed as an acknowledgement by the Processor of any fault or liability with respect to the Data Breach.

The Processor will not assess the content of the Controller’s data in order to identify information subject to any specific Controller data breach.  Controller is solely responsible for complying with data breach notification laws applicable to the Controller and fulfilling any third-party notification obligations related to any Data Breach(es).

11.   Compliance, Cooperation and Response

In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law.  The Controller shall reimburse the Processor for all reasonable costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request or assisting the Controller in complying with its duties.  In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as required.

The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Controller, unless such notification is not permitted under applicable law or a relevant court order.

The Processor may make copies of and/or retain Personal Data in order to comply with its legal or regulatory requirement including, but not limited to, retention requirements.

The Processor shall reasonably assist the Controller in meeting the Controller’s obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of the processing and the information available to the Processor.

The Parties acknowledge that it is the duty of the Controller to notify the Processor within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of the Processor.  The Processor shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organisational measures to maintain compliance.  If the Parties agree that amendments are required, but the Processor is unable to accommodate the necessary changes, the Controller may terminate the part or parts of the Services which give rise to the non-compliance.  To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.

The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA and Data Protection Law.

The parties agree that the Processor will be entitled to charge the Controller additional fees to reimburse the Processor for its staff time, costs and expenses in assisting the Controller, when the Controller requests the Processor to provide assistance pursuant to this DPA.  In such cases, the Processor will notify the Controller of its fees for providing assistance, in advance.

12.   Term and Termination

The Processor will only process Personal Data for the term of the DPA and, thereafter, in accordance with its data back-up policy in force at the relevant time, provided that where any law, regulation, or government or regulatory body requires the Processor to retain any documents or materials containing any part or all of the Personal Data, the Processor shall be entitled to retain such documents or materials for the duration of such retention requirement.  The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.

13.   General

Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected.  A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision.  The same shall apply to any omissions.

Subject to any provisions of the Standard Contractual Clauses to the contrary, this DPA shall be governed by the laws of England and Wales.  The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA.

The Parties agree that this DPA is incorporated into and governed by the Customer Terms.

 

 

 

Data Processing Agreement – Schedule 2

Commission Decision C(2010)593

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 the Controller, (the data “exporter”) and

the Processor, (the data “importer”) each a “party”; together “the parties”, HAVE AGREED on the following Standard Contractual Clauses (the “Standard 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 the DPA.

1.       Definitions

For the purposes of the Standard Contractual Clauses all terms used in capitals shall have the meaning given to them in the DPA unless defined otherwise below:

  1. ‘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;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘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 Standard Contractual 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;
  4. ‘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 Standard Contractual Clauses and the terms of the written subcontract;
  5. ‘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;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

2.       Details of the transfer

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

3.       Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Standard Contractual 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.

4.       Obligations of the data exporter

The data exporter agrees and warrants:

  1. 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;
  2. 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 Standard Contractual Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in the Security Policy;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. to make available to the data subjects upon request a copy of the Standard Contractual Clauses, with the exception of the Security Policy, 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 Standard Contractual Clauses, unless the Standard Contractual Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. 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 Standard Contractual Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

5.       Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Standard Contractual 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;
  2. 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 Standard Contractual 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;
  3. that it has implemented the technical and organisational security measures specified in the Security Policy before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. 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,
    2. any accidental or unauthorised access, and
  • any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  1. 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;
  2. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Standard Contractual 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;
  3. to make available to the data subject upon request a copy of the Standard Contractual Clauses, or any existing contract for subprocessing, unless the Standard Contractual Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of the Security Policy 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;
  4. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  5. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  6. to send promptly a copy of any subprocessor agreement it concludes under the Standard Contractual Clauses to the data exporter.

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.
    1. 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.
    2. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  2. 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 Standard Contractual 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 Standard Contractual Clauses.

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 Standard Contractual Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. 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.

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).

9.       Governing Law

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

10.   Variation of the contract

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

11.   Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Standard Contractual Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Standard Contractual 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 Standard Contractual 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 Standard Contractual 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 Standard Contractual 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.

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.

13.   Miscellaneous

  1. These Standard Contractual Clauses take priority over any other agreement between the parties, whether entered into before or after the date these Standard Contractual Clauses are entered into.
  2. These Standard Contractual Clauses take priority over any other agreement between the parties, whether entered into before or after the date these Standard Contractual Clauses are entered into.