SUPPORTBENCH DATA PROCESSING ADDENDUM Last Modified: May 21 2018
This Supportbench Data Processing Addendum (the “Addendum”) is entered into by and between Supportbench Services Inc (“Supportbench”) and you (the “Customer”) (each, a “Party” and, collectively, the “Parties”) as of the date when you clicked the “Accept” button on the page in the Supportbench Billing & Invoicing section that makes reference to this Addendum (“Addendum Date”). If you did not click on such button, then this Addendum does not apply to you or your use of the Services (as defined below). If you are accepting the terms of this Addendum on behalf of an entity, you represent and warrant to Supportbench that you have the authority to bind that entity and its affiliates, where applicable, to the terms and conditions of this Addendum.
WHEREAS, the Parties have entered into the Supportbench Terms of Service Agreement which can be found at http://www.supportbench.com/terms or elsewhere on the Supportbench website, as published and amended from time to time (the “Service Agreement”), of which this Addendum forms a part;
WHEREAS, the Parties now wish to amend the Service Agreement to ensure that Personal Data (as defined below) transferred between the Parties is Processed (as defined below) in compliance with certain data protection laws;
WHEREAS, the Parties agree that in the event of any conflict between the Service Agreement and this Addendum, the provisions of this Addendum shall control;
NOW, THEREFORE, in consideration of the mutual agreements set forth in this document and for other good and valuable consideration, the receipt and sufficiency of which the Parties both acknowledge, the Parties agree as follows:
1.1. The definitions used in this Addendum shall have the meanings set forth in this Addendum. Capitalized definitions not otherwise defined herein shall have the meaning given to them in the Service Agreement. Except as modified or supplemented below, the definitions of the Service Agreement, as well as all the other terms and conditions of the Service Agreement, shall remain in full force and effect.
1.2. For the purpose of interpreting this Addendum, the following terms shall have the meanings set out below:
(a) “Customer” means the party that has accepted the Service Agreement, and entered into this Addendum with Supportbench, including all affiliates of that entity that are also bound by the Service Agreement, if any;
(b) “Customer Personal Data” means any Personal Data Processed by Supportbench or a Subprocessor on behalf of the Customer pursuant to or in connection with the Service Agreement;
(c) “Contracted Processor” means Supportbench, a Subprocessor, or both collectively;
(d) “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
(e) “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation);
(f) “Restricted Transfer” means any transfer of Customer Personal Data that would be prohibited by EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of EU Data Protection Laws) in the absence of the execution of the Standard Contractual Clauses or another lawful data transfer mechanism, as set out in Section 12 below;
(g) “Services” means the services and other activities to be supplied to or carried out on behalf of the Customer by Supportbench pursuant to the Service Agreement; and
(h) “Subprocessor” means any person (including any third party but excluding an employee of Supportbench or an employee of any of its sub-contractors) appointed by or on behalf of Supportbench to Process Customer Personal Data on behalf of the Customer in connection with the Service Agreement.
1.3. The terms, “Controller”, “Data Subject”, “Rights of the Data Subject(s)”, “Member State”, “Personal Data”, “Personal Data Breach”, all forms of the word “Process” (e.g., Processing, Processed, etc.), “Processor”, “Special Categories of Personal Data”, “Supervisory Authority”, and “Third Country”, whether capitalized or not, shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Applicability, Term, Termination & Modification
2.1. This Addendum, including the Standard Contractual Clauses (if applicable), will only apply to the Processing of Customer Personal Data, to the extent that such specific Customer Personal Data is regulated by EU Data Protection Laws. The Parties to this Addendum hereby agree that the terms and conditions set out herein shall be added as an addendum to the Service Agreement. Except where the context requires otherwise, references in this Addendum to the Service Agreement are to the Service Agreement as amended or supplemented by, and including, this Addendum.
2.2. Term. The Term of this Addendum shall take effect on the later of the Addendum Date, or May 25, 2018 (the “Effective Date”), and continue on concurrently for the term of the Service Agreement unless this Addendum is terminated earlier as provided for herein.
2.3. Termination. Notwithstanding any language in this Addendum to the contrary, Supportbench shall have the right to terminate this Addendum:
(a) for convenience upon 30 days’ notice to Customer; or
(b) if Supportbench makes a determination that it can no longer meet its obligations in accordance with this Addendum, in which case it shall promptly notify the Customer of that determination and cease the Processing or take other reasonable and appropriate steps to remediate. If Supportbench, in its sole discretion is not able to provide an adequate remediation, it may terminate this Addendum immediately with notice to Customer.
Upon termination of this Addendum, Customer’s sole remedy shall be the right to terminate the Service Agreement, in which case Supportbench shall refund the prorated portion of any fees prepaid to Supportbench for the Services for the period after the date of the termination of the Service Agreement and Customer will pay Supportbench for all charges incurred or accrued prior to such termination of the Service Agreement.
Any termination of this Addendum shall also immediately terminate the Standard Contractual Clauses, if applicable.
2.4. Modification. This Addendum may be modified by Supportbench at any time by posting a revised version on the Site or by otherwise notifying you in accordance with the other methods provided for in the Service Agreement. The modified Addendum will become effective immediately upon the earliest date of posting or other such notice if given. Continued use of the Services or non-termination of any Order or Account after the effective date of any modifications to this Addendum indicates your acceptance of the modified Addendum, which you agree to be bound by. It is your responsibility to check the Sites regularly for modifications to this Addendum. Although we may employ additional notification methods, we are not required to do so, or continue to do so.
3. Processing of Customer Personal Data.
3.1. In the context of this Addendum, the Customer typically acts as a data Controller and Supportbench acts as a data Processor with regard to the Processing of Customer Personal Data. The Customer may also be acting as a data Processor, in which case it is imposing its own obligations before its own respective Controller(s) onto Supportbench in accordance with Article 28(4) of the GDPR. For the avoidance of doubt, both situations described above fall within the scope of and are covered by this Addendum.
3.2. Supportbench warrants that it will:
(a) comply with all EU Data Protection Laws in the course of Processing of Customer Personal Data;
(b) not Process Customer Personal Data other than on the Customer’s relevant documented instructions which are completely described in this Addendum and the Service Agreement;
(c) only conduct transfers of Customer Personal Data, where such transfer would be prohibited by EU Data Protection Laws (and no exemption or derogation applies), pursuant to the terms of Section 12 of this Addendum.
3.3. The Customer instructs Supportbench (and authorizes Supportbench to instruct each Subprocessor) to Process Customer Personal Data, and in particular, transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Service Agreement and this Addendum. In the event that in Supportbench’ opinion a Processing instruction given by the Customer may infringe EU Data Protection Laws, Supportbench shall immediately inform the Customer.
3.4. Customer will not provide, or allow to be provided, to Supportbench any Sensitive Data (as defined in the Service Agreement) or any data or information that constitutes Special Categories of Personal Data as defined by Article 9(1) of the GDPR. Customer agrees that this Addendum shall not apply to any such data and Supportbench shall have no obligations or liability for any such data, including but not limited to security incidents.
3.5. Customer acknowledges that Supportbench is required under EU Data Protection Laws to (a) collect and maintain records of certain information, such as the contact details of each Controller and, if applicable, each Processor on behalf of which Supportbench is acting, and where applicable, of such Processor’s or Controller’s EU representative and data protection officer; and (b) make such information available to the supervisory authorities, upon their request. Accordingly, if applicable under EU Data Protection Law, Customer will, where requested, provide such information to Supportbench via the Sites or other official means designated by Supportbench, and ensure that such information is kept up-to-date, complete, and accurate.
4. Supportbench Personnel.
4.1. Supportbench shall take reasonable steps to ensure the reliability of any employee, agent, or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is limited to those individuals who need to know or access the relevant Customer Personal Data, as necessary for the purposes of the Service Agreement, and to comply with EU Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals have committed themselves to confidentiality or are under an appropriate statutory or professional obligation of confidentiality.
5. Security of Processing.
5.1. 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 to the rights and freedoms of natural persons, Supportbench shall, with regard to Customer Personal Data, implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2. In assessing the appropriate level of security, Supportbench shall take account, in particular, of the risks that are presented by the nature of such Processing activities, and particularly those related to possible Personal Data Breaches.
6.1. The Customer authorizes Supportbench to appoint Subprocessors in accordance with this Section 6 and any possible further restrictions, as set out in the Service Agreement.
6.2. Supportbench may continue to use those Subprocessors already engaged by Supportbench as of the Effective Date of this Addendum, subject to Supportbench meeting the obligations set out in Section 6.4. The list of Supportbench Subprocessors is located at: https://support.supportbench.net/article/ar-93/.
6.3. Supportbench shall give the Customer 10 days prior notice of the appointment of any new Subprocessor, by way of updating the list of Subprocessors as indicated in Section 6.2. If Customer objects to the proposed appointment, its sole remedy shall be the right to terminate the Service Agreement which it may exercise by notifying Supportbench at firstname.lastname@example.org and taking the appropriate actions for cancelation as provided for in the Service Agreement. If after 10 days of Supportbench posting each such update, the Customer a) has not notified email@example.com and has not terminated the Service Agreement or b) continues to use the Services, it shall be deemed that the Customer has consented to the proposed appointment.
6.4. With respect to each Subprocessor, Supportbench shall:
(a) before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with Section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by this Addendum, the Service Agreement, and EU Data Protection Laws; and
(b) ensure that the arrangement between Supportbench and any prospective Subprocessor as applicable, is governed by a written contract including terms which offer the same level of protection for Customer Personal Data as those set out in this Addendum to the extent applicable to the nature of the services provided by each Subprocessor, and that such terms meet the requirements of Article 28(3) of the GDPR.
7. Rights of the Data Subjects.
7.1. Taking into account the nature of the Processing, Supportbench shall assist the Customer by implementing appropriate technical and organizational measures, insofar as reasonably possible, for the fulfilment of the Customer’s obligations, to respond to requests to exercise Rights of the Data Subjects under the EU Data Protection Laws.
7.2. With regard to Rights of the Data Subjects within the scope of this Section 7, Supportbench shall:
(a) promptly notify the Customer if any Contracted Processor receives a request from a Data Subject under any EU Data Protection Law in respect of Customer Personal Data; and
(b) ensure that the Contracted Processor does not respond to that request except on the documented instructions of the Customer, or as required by the EU Data Protection Laws to which the Contracted Processor is subject, in which case Supportbench shall, to the extent permitted by the EU Data Protection Laws, inform the Customer of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach.
8.1. Supportbench shall notify the Customer without undue delay upon Supportbench or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing the Customer with sufficient information to allow the Customer to meet any obligations pursuant to the EU Data Protection Laws to report to the Supervisory Authorities or any other competent authorities and/or inform the Data Subjects of the Personal Data Breach.
8.2. Supportbench shall co-operate with the Customer and take all commercially reasonable steps to assist the Customer in the investigation, mitigation, and remediation of each such Personal Data Breach.
8.3. Supportbench’ notification of or response to a Personal Data Breach under this Section 8 will not be construed as an acknowledgement by Supportbench of any fault or liability with respect to the Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation.
9.1. Supportbench shall provide the Customer with relevant documentation, such as a VeraSafe Privacy Program audit report (upon a written request and subject to obligations of confidentiality), with regard to any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, when the Customer reasonably considers that such data protection impact assessments or prior consultations are required pursuant to Article 35 or 36 of the GDPR or pursuant to the equivalent provisions of any other EU Data Protection Law, but in each such case solely with regard to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the respective Contracted Processors.
10. Deletion or Return of Customer Personal Data.
10.1. Supportbench shall provide the Customer with the means to request the deletion of Customer Personal Data within the terms of this Addendum and the Service Agreement, unless EU Data Protection Laws require or allow storage of any such Customer Personal Data.
10.2. The Customer is responsible to download all data, including Customer Personal Data, that it wishes to keep prior to cancelling the Services. Promptly following the date of cessation of Services involving the Processing of Customer Personal Data, Supportbench will delete all Customer Personal Data, unless EU Data Protection Laws allow or any applicable laws require retention of any such Customer Personal Data.
11. Audit Rights.
11.1. Where the Customer is entitled to and desires to review Supportbench’ compliance with the EU Data Protection Laws, the Customer may request, and Supportbench will provide (subject to obligations of confidentiality) Supportbench’ annual VeraSafe Privacy Program audit report, or other similar audit report. If the Customer, after having reviewed such audit report(s), still reasonably deems that it requires additional information, Supportbench shall further reasonably assist and make available to the Customer, upon a written request and subject to obligations of confidentiality, all other information and/or documentation necessary to demonstrate compliance with this Addendum, and the obligations pursuant to Articles 32 to 36 of the GDPR in particular, and shall allow for and contribute to audits, including remote inspections of the Services, by the Customer or an auditor selected by the Customer with regard to the Processing of the Customer Personal Data by the Contracted Processors.
11.2. Supportbench may charge a fee based on its reasonable costs for any audit or other services performed under this Section 11 or the Standard Contractual Clauses, if applicable. Supportbench will provide Customer with further details of any applicable fee and required payment terms in advance of any such review or audit. Customer will be solely responsible for any costs related to such audit including but not limited to any fees charged by any auditor appointed by Customer.
11.3. Supportbench may object in writing to an auditor appointed by Customer to conduct any audit under this Section 11 or the Standard Contractual Clauses, if applicable, if the auditor is, in Supportbench’ reasonable opinion, not suitably qualified or independent, a competitor of Supportbench, presents a security risk, or otherwise manifestly unsuitable. In the event Supportbench exercises its right to object under this section, Customer will be required to appoint another auditor or conduct the audit itself.
11.4. Any audit, service, or information disclosure provided for in this Section 11 shall be subject to Supportbench’ operational, security and confidentiality terms and guidelines. ?
12. Restricted Transfers and Applicability of The Standard Contractual Clauses
12.1. With regard to any Restricted Transfer from the Customer to Supportbench within the scope of this Addendum, one of the following transfer mechanisms shall apply, in the following order of precedence:
(a) Supportbench’ EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (“Privacy Shield”) self-certifications (if any);
(b) the Standard Contractual Clauses; or
(c) any other lawful basis, as laid down in the EU Data Protection Laws, as the case may be.
12.2. The Standard Contractual Clauses (Exhibit B) will only apply and be entered into during, and for the duration of, any period where Supportbench’ Privacy Shield self-certifications are not valid or the Privacy Shield itself is deemed by EU authorities as inadequate as a data transfer mechanism. During any such period, and only for the duration of such period, the Customer (as “data exporter”) and Supportbench (as “data importer”) enter into the Standard Contractual Clauses (as set out in Exhibit B), which are incorporated by reference and constitute an integral part of this Addendum. During such periods, the Parties are deemed to have accepted and executed the Standard Contractual Clauses in their entirety, including the appendices. Notwithstanding anything to the contrary, the Standard Contractual Clauses will not apply, will be exited from, and will be considered null and void, (a) during any period where Supportbench maintains a valid Privacy Shield self-certification and the Privacy Shield is deemed by EU authorities as an adequate data transfer mechanism; or (b) where the specific Customer Personal Data being Processed is not regulated by EU Data Protection Laws.
12.3. In cases where the Standard Contractual Clauses apply, and there is a conflict between the terms of the Addendum and the terms of the Standard Contractual Clauses, the terms of the Standard Contractual Clauses shall control.
13. General Terms.
13.1. All clauses of the Service Agreement, that are not explicitly amended or supplemented by the clauses of this Addendum, and as long as this does not contradict with compulsory requirements of the EU Data Protection Laws under this Addendum, remain in full force and effect and shall apply to this Addendum (and the Standard Contractual Clauses if applicable) including, but not limited to: Jurisdiction and Governing Law, Indemnification, and Disclaimer of Warranties and Limitation of Liability (to the maximum extent permitted by the EU Data Protection Laws).
13.2. Should any provision of this Addendum be found invalid or unenforceable pursuant to any applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Addendum will continue in effect.
13.3. Headings used in this addendum are are provided for convenience only and shall not be used to construe meaning or intent.
14. Contact Points.
14.1. Supportbench’ Data Protection Officer and EU Representative contact information (pursuant to Art. 27 GDPR), may be found on its website at: https://support.supportbench.net/article/ar-93/ which may be updated from time to time by posting revised contact information at this location or another as designated by Supportbench from time to time.
SUPPORTBENCH DATA PROCESSING ADDENDUM EXHIBIT A
1. Pursuant to Article 28(3) of the GDPR, further details of the Processing, in addition to the ones laid down in the Service Agreement and this Addendum, include:
1.1. The subject matter of the Processing of Customer Personal Data is the provision of Services by Supportbench, as requested and used by the Customer.
1.2. The duration of the Processing of Customer Personal Data is for the term of the Service Agreement or as otherwise agreed between the parties or required by law.
1.3. The purpose of Processing of Customer Personal Data pertains to the provision of Services, as requested by the Customer and provided for in the Service Agreement as well as the detection, prevention, and resolution of security, compliance, and technical issues relating to such Services. The nature of such Processing is related to these purposes and is elaborated on in this Addendum and the Service Agreement.
1.4. The types of Customer Personal Data to be Processed typically include, without limitation, contact data (name, phone number, address, email address, geographic location), demographic information, title, personal interests or preferences, IP addresses, usage information, metadata pertaining to the use of the Services, and any other type of information the Customer may, at its sole discretion, provide or request to be Processed; however, Customer will not provide, or allow to be provided, to Supportbench any Sensitive Data (as defined in the Service Agreement) or any data or information that constitutes Special Categories of Personal Data as defined by Article 9(1) of the GDPR and such data shall be excluded from the types of Customer Personal Data to be Processed.
1.5. The categories of Data Subjects to whom the Customer Personal Data relates include the Customer itself, senders and recipients of email messages as well as Data Subjects whose personal data may be contained in the body of email messages Processed by the Service on behalf of the Customer, or otherwise provided by the Customer.
1.6. The obligations and rights of the Customer are:
(a) The rights and obligations of the Customer are set out in the Service Agreement and this Addendum.
SUPPORTBENCH DATA PROCESSING ADDENDUM EXHIBIT B
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 Customer, as defined in the Addendum (as “data exporter”),
and Supportbench, as defined in the Addendum (as “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 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
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 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 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
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.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
By entering into the Standard Contractual Clauses, pursuant to Section 12.2 of the Addendum, the parties are deemed to have signed this Appendix 1.
Capitalized definitions in this Appendix will have the meaning given to them in the Addendum.
Data exporter The data exporter is the Customer, as defined in the Addendum.
Data importer The data importer is Supportbench, as defined in the Addendum.
Data subjects The Service allows Supportbench’ customers full control over the content of the email messages they send and much control over other data a customer may store or manage with the Service. As such, Supportbench is unaware of the exact data subjects whose personal data may be included in emails messages being Processed or otherwise provided by the customer through their use of the Service. Supportbench requires, at a minimum, a sender email address and a recipient email address, in order to transmit an email message from the Services (as defined in the Service Agreement).
Categories of data The categories of data to be Processed typically include, without limitation, contact data (name, phone number, address, email address, geographic location), demographic information, title, personal interests or preferences, IP addresses, usage information, metadata pertaining to the use of the Services, and any other type of information the Customer may, at its sole discretion, provide or request to be Processed; however, Customer will not provide, or allow to be provided, to Supportbench any Sensitive Data (as defined in the Service Agreement) or any data or information that constitutes Special Categories of Personal Data as defined by Article 9(1) of the GDPR and any such data shall be specifically excluded.
Processing operations Supportbench processes data as necessary to provide the Service, to respond to customer support requests, and otherwise to fulfill the obligations and conduct the operations described in the Service Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
By entering into the Standard Contractual Clauses, pursuant to Section 12.2 of the Addendum, the parties are deemed to have signed this Appendix 2.
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):
This document is a high-level overview of our internal security policies. As part of our ongoing commitment to data security Supportbench will:
* limit access to our information systems to those people with a need to know or need to access for lawful business purposes and to comply with laws and regulations. * purge, delete, or destroy data in electronic or paper form after it is no longer needed. * conduct privacy and security training for all employees. * periodically perform risks assessments for all information systems. * inventory, classify, and manage information systems throughout their lifecycle. * grant privileges according to job responsibilities that are based on the principle of least privilege. * ensure that third-party service providers have adequate security and privacy agreements. * perform background checks for all employees. * use physical security controls to limit access to information systems to authorized personnel. * implement and maintain appropriate environmental controls to protect the integrity and availability of information systems. * require strong and robust passwords. * use endpoint security solutions on information systems to help protect them against virus and malware attacks. * maintain backup copies of critical information systems to avoid the loss of data. * secure, segment, and restrict network traffic using firewalls. * use a change management process before carrying out any major information system change. * patch and update information systems to protect them against vulnerabilities. * encrypt all data at rest or in transit across our internal information systems using strong encryption techniques. * respond to security incidents in a consistent and timely manner. * perform regular vulnerability scans of the information systems. * monitor network traffic for malicious or suspicious activity to quickly identify and respond to threats. * engage an independent third party to audit our information systems and security practices on a regular basis. * continually evaluate and update its policies and these controls as necessary.
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