This Data Processing Addendum ("DPA") is incorporated into and forms part of the Variance Terms and Conditions and/or other applicable agreement between Variance, Inc. (“Variance”) and Customer with respect to use of the Services (the "Agreement"). This DPA sets out the requirements for Variance’s processing of Personal Data on behalf of Customer for the purposes of providing the Services.
This DPA is effective on the date of the Agreement, unless this DPA is separately executed in which case it is effective on the date of last signature. Each of Variance and Customer may referred to as a "party" and together as "parties".
- “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
- “Anonymous Data” means Personal Data that has been processed in such a manner that it can no longer be attributed to an identified or identifiable natural person.
- “Authorized Employee” means an employee of Variance who has a need to know or otherwise access Personal Data to enable Variance to perform their obligations under this Addendum or the Agreement.
- “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Personal Data to enable Variance to perform its obligations under this Addendum or the Agreement, and who is either (1) listed in Exhibit B or (2) authorized by Customer to do so under Section 4.2 of this Addendum.
- “Data Subject” means an identified or identifiable person to whom Personal Data relates.
- “Instruction” means a direction, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Customer to Variance and directing Variance to Process Personal Data.
- “Personal Data” means any information relating to a Data Subject which is subject to Data Protection Laws (defined below) and which Variance Processes on behalf of Customer other than Anonymous Data.
- “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.
- “Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
- “Services” shall have the meaning set forth in the Agreement.
- “Standard Contractual Clauses” means the agreement executed by and between Customer and Variance and attached hereto as Exhibit C pursuant to the European Commission’s decision (C(2010)593) of February 5, 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection (or any updated version thereof).
- “Supervisory Authority” means an independent public authority which is established by a member state of the European Union, Iceland, Liechtenstein, or Norway.
2. Processing of Data
- The rights and obligations of the Customer with respect to this Processing are described herein. Customer shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”) and the United Kingdom Data Protection Act 2018 (together, “Data Protection Laws”). Customer shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Customer’s instructions will not cause Variance to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Variance by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Variance regarding the Processing of such Personal Data. Customer shall not provide or make available to Variance any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Variance from all claims and losses in connection therewith. This Addendum does not apply to Personal Data for which Variance is a controller.
- Variance shall not Process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this Addendum or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Variance is subject; in such a case, the Variance shall inform the Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) in violation of the GDPR. Customer hereby instructs Variance to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Customer in its use of the Services.
- The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this Addendum.
- Following completion of the Services, at Customer’s choice, Variance shall return or delete the Personal Data, unless further storage of Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Variance shall take measures to block such Personal Data from any further Processing (except to the extent necessary for its continued hosting or Processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Variance have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Variance to Customer only upon Customer’s request.
3. Authorized Employees
- Variance shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
- Variance shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with Variance, any Personal Data except in accordance with their obligations in connection with the Services.
- Variance shall take commercially reasonable steps to limit access to Personal Data to only Authorized Employees.
4. Authorized Sub-Processors
- Customer acknowledges and agrees that Variance may (1) engage its affiliates and the Authorized Sub-Processors listed in Exhibit B to this Addendum to access and Process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data. By way of this Addendum, Customer provides general written authorization to Variance to engage sub-processors as necessary to perform the Services.
- A list of Variance’s current Authorized Sub-Processors (the “List”) will be made available to Customer, either attached hereto, at a link provided to Customer, via email or through another means made available to Customer. Such List which may be updated by Variance from time to time. The List may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available. At least ten (10) days before enabling any third party other than Authorized Sub-Processors to access or participate in the Processing of Personal Data, Variance will add such third party to the List. Customer may reasonably object to such an engagement on legitimate grounds by informing Variance in writing within ten (10) days of receipt of the aforementioned notice by Customer. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Variance from offering the Services to Customer.
- If Customer reasonably objects to an engagement in accordance with Section 4.2, and Variance cannot provide a commercially reasonable alternative within a reasonable period of time, Variance may terminate this Addendum. Termination shall not relieve Customer of any fees owed to Variance under the Agreement.
- If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Variance, that third party will be deemed an Authorized Sub-Processor for the purposes of this Addendum.
- Variance will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Variance under this Addendum with respect to the protection of Personal Data. In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Variance, Variance will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement
- If Customer and Variance have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Variance of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Variance to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Variance beforehand, and that such copies will be provided by the Variance only upon request by Customer.
5. Security of 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, Variance shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
6. Transfers of Personal Data
- The parties agree that Variance may transfer Personal Data processed under this Addendum outside the European Economic Area (“EEA”), the United Kingdom, or Switzerland as necessary to provide the Services. If Variance transfers Personal Data protected under this Addendum to a jurisdiction for which the European Commission has not issued an adequacy decision, Variance will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
- Where required, any transfer of Personal Data made subject to this Addendum to any countries which do not ensure an adequate level of data protection shall be undertaken by Variance through the Standard Contractual Clauses set forth in Exhibit C to this Addendum, or, if available, an alternative compliance mechanism authorized pursuant to Data Protection Laws or subsequent guidance from EEA or United Kingdom regulators, as applicable.
7. Rights of Data Subjects
- Variance shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Variance receives a Data Subject Request in relation to Customer’s data, Variance will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of Processing, or withdrawal of consent to Processing of any Personal Data are communicated to Variance, and, if applicable, for ensuring that a record of consent to Processing is maintained with respect to each Data Subject
- Variance shall, at the request of the Customer, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Variance’s assistance and (ii) Variance is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Variance.
8. Actions and Access Requests
- Variance shall, taking into account the nature of the Processing and the information available to Variance, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Variance.
- Variance shall, taking into account the nature of the Processing and the information available to Variance, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Variance.
- Variance shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Variance, have the right to review, audit and copy such records at Variance’s offices during regular business hours.
- Upon Customer’s request, Variance shall, no more than once per calendar year, either (i) make available for Customer’s review copies of certifications or reports demonstrating Variance’s compliance with prevailing data security standards applicable to the Processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, to conduct an audit or inspection of Variance’s data security infrastructure and procedures that is sufficient to demonstrate Variance’s compliance with its obligations under this Addendum, provided that Customer shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Variance’s business. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Variance for any time expended for on-site audits. If Customer and Variance have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with this Section 8.4.
- Variance shall immediately notify Customer if an instruction, in the Variance’s opinion, infringes the Data Protection Laws or Supervisory Authority.
- In the event of a Personal Data Breach, Variance shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Variance in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Variance’s reasonable control).
- In the event of a Personal Data Breach, Variance shall, taking into account the nature of the Processing and the information available to Variance, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
- The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Variance’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Variance of any fault or liability with respect to the Personal Data Breach.
9. Law Enforcement Requests
If a law enforcement or government agency sends Variance a demand for Personal Data, Variance shall attempt to redirect the agency to request that data directly from Customer. As part of this effort, Variance may provide Customer’s basic contact information to the law enforcement or government agency. If compelled to disclose Personal Data to a law enforcement or government agency, then Variance shall give Customer reasonable notice of the demand and cooperation to allow Customer to seek a protective order or other appropriate remedy unless Variance is legally prohibited from doing so. Variance shall not voluntarily disclose Personal Data to any law enforcement or government agency.
10. Limitation of Liability
The total liability of each of Customer and Variance (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Addendum, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
EXHIBIT A: Details of Processing
Nature and Purpose of Processing: The collection, storage, duplication, deletion, analysis, and disclosure of Personal Data pursuant to providing the Services to Customer and any further instructions by Customer in writing.
Duration of Processing: Term of the Agreement.
Categories of Data Subjects: Customer’s customers, website visitors, and other end-users.
Type of Personal Data: Any Personal Data that Customer in its discretion uploads into the Services or which Customer permits Variance to access in connection with Variance’s provision of the Services will be processed under this DPA
EXHIBIT B: Authorized Sub-Processors
Controller acknowledges and agrees that the entities listed at this link shall be deemed Authorized Sub-Processors that may Process Personal Data pursuant to this Addendum.
EXHIBIT C: Standard Contractual Clauses
For the purposes of the GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
The entity identified as “Customer” in the Addendum
(the ‘data exporter’)
466 Bergen St, 2, Brooklyn, NY 11217
(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 Controller and any Controller affiliate;
(c) 'the data importer' means Processor and any Processor affiliate;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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
- 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.
- 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.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- 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 organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any 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 organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is the entity identified as “Customer” in the Addendum.
The data importer is Variance, Inc. that provides the Services (which Services include processing Personal Data) in accordance with the Customer’s instructions.
Data subjects are defined in Exhibit A of the Addendum.
Categories of data
The personal data are defined in Exhibit A of the Addendum.
Special categories of data (if appropriate)
The processing operations are defined in Exhibit A of the Addendum.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Variance will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, without limitation, the security measures set out. Variance will take reasonable steps to ensure that only authorised personnel have access to Personal Data and that any persons whom it authorizes to access the Personal Data are under obligations of confidentiality.