Data Processing Addendum
This Data Processing Addendum (the “DPA”) is between Section Incorporated including its subsidiaries (“Section”) and the customer identified below (“Customer”), and forms a part of, and is incorporated into, the Master Service and License Agreement (the “Agreement”) between Section and Customer. All capitalized terms not defined herein shall have the meaning set forth in the Agreement. The parties agree as follows:
1.1 “Applicable Data Protection Laws” means the data protection laws, rules and regulations that are applicable to Section. With respect to Personal Data from the EU, “Applicable Data Protections Laws” shall include, but not be limited to, the General Data Protection Regulation (GDPR) (Regulation (EU) 2016 / 679).
1.2 “Customer Personal Data” means Personal Data that is received by Section pursuant to the Agreement and pertains to Customer’s current, former, or potential customers, employees, vendors, or other individuals who are, based on information known to Section, residents of the European Union.
1.3 “Data Subject” means the identified or identifiable person to whom Personal Data relates.
1.4 “EU” or “European Union” means the European Economic Area, inclusive of the United Kingdom, whether or not the United Kingdom has officially withdrawn from the European Union, as well as Switzerland.
1.5 “Personal Data” shall have the meaning assigned to the terms “personal data” or “personal information” under Applicable Data Protection Laws.
1.6 “Privacy Shield” means the European Union - United States (“US”) and Swiss - US Privacy Shield Frameworks.
1.7 “Process”, “Processes”, “Processing”, “Processed” and “Supervisory Authority” shall have the meanings assigned to them in the Applicable Data Protection Laws.
1.8 “Security Incident” means an event in which Customer Personal Data held by Section has been, to the knowledge of Section, accessed, disclosed, acquired or used by any unauthorized person, in violation of Applicable Data Protection Laws.
1.9 “Sub-Processor” means Section’s contractors, agents, vendors, and third-party service providers, that Process Customer Personal Data.
2. DATA HANDLING AND ACCESS
2.1 General Compliance. Customer hereby authorizes and instructs Section to, and Section will, and will require Sub-Processors to, Process Customer Personal Data in compliance with the Agreement, this DPA, and all Applicable Data Protection Laws. Customer represents and warrants that: (i) it has all authority and consents required by Applicable Data Protection Laws for such Processing of the Customer Personal Data, and (ii) Customer’s instructions for the Processing of Personal Data shall comply with Applicable Data Protection Laws. In particular, Customer represents and warrants on an ongoing basis that, for the purposes of Article 6 of the GDPR, there is, and will be throughout the term of the Agreement, a legal basis for the Processing by Section of Personal Data on behalf of Customer.
2.2 Section and Sub-Processor Compliance. Section agrees to (i) enter into a written agreement with each Sub-Processor regarding such Sub-Processor’s Processing of Customer Personal Data that imposes on such Sub-Processors data protection and security requirements for Customer Personal Data that are compliant with Applicable Data Protection Laws, and that, at a minimum, require a level of data protection and security equal to or superior to the level of data protection and security under this DPA; (ii) reasonably enforce compliance with such written agreements; and (iii) remain responsible to Customer for the actions or omissions of Section’s Sub-Processors (and their sub-processors if applicable) with respect to the Processing of Customer Personal Data.
2.3 Authorization to Use Sub-Processors. Customer hereby authorizes (i) Section to engage Sub-Processors and (ii) Sub-Processors to engage sub-processors. Section will provide Customer, upon Customer’s request, the name, address and role of each Sub-Processor used to Process Customer Personal Data and any other records of Processing of Customer Personal Data that Sub-Processors are required to maintain and provide under Applicable Data Protection Laws. Section will make available to Customer a current list of Sub-processors engaged in connection with the provision of the Services with the identities of those Sub-processors upon request of Subscriber or by posting such list to a Section website. Additions or changes to the list of Sub-processors will be provided to Customers through the list posted on the Section website.
2.4 Objection Right for New Sub-Processors.Customer may object to Section’s use of a new Sub-Processor by notifying Section promptly in writing within ten (10) business days after receipt of such information. In the event Customer objects to a new Sub-Processor, as permitted in the preceding sentence, Section may address the concerns with respect to the Sub-Processor, or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to Sub-Processor without unreasonably burdening the Customer. If Section does not do so within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Order Form(s) with respect only to any such Services which cannot be provided by Section without the use of the objected-to new Sub-Processor by providing written notice to Section. Section will refund Customer any prepaid fees for such Services covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Order Form(s).
2.5 Following Instructions. Section will Process Customer Personal Data only in accordance with the written instructions of Customer and may Process Customer Personal Data: (i) in accordance with the Agreement and applicable Order Form(s); (ii) as initiated by users in their use of the Services; (iii) to further develop and provide services to Section’s customers, (iv) to facilitate the anonymization of Personal Data, and (v) to comply with other documented reasonable instructions provided by Customer (e.g., via email). Section will immediately notify Customer in writing if, in Section’s reasonable opinion, Customer’s instructions infringe any Applicable Data Protection Laws, provided that Customer acknowledges that the Services might Process Personal Data on an automated basis in accordance with Customer’s configurations, which Section does not monitor. As part of the Services, Section,io maintains a growing global network of points of presence (“PoPs”). Section’s PoPs will process requests and transmit cache content (including Personal Data) in accordance with Customer’s configurations of the Services. Customer Personal Data will automatically transit across national borders in response to Customer’s clients’ requests and Customer’s configurations.
2.6 Details of the Processing. The subject matter of Processing of Personal Data by Section is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
3. EU LAWS
3.1 Rights of Data Subjects. Section will, to the extent legally permitted, promptly notify Customer if Section receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). To the extent Customer does not have access to the applicable Customer Personal Data, Section will (a) assist Customer by appropriate technical and organizational measures for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Applicable Data Protection Laws, and (b) Section will, upon Customer’s request and at Customer’s expense, provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Section is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations.
3.2 Section Data Transfer Mechanism. For all transfers of EU Personal Data pursuant to the Agreement, the parties hereby incorporate the Standard Contractual Clauses approved by the European Commission (the “SCCs”) as Schedule 2. To the extent there is any conflict between the body of this DPA and the SCCs, the SCCs shall control. If and when Section certifies compliance with Privacy Shield, the SCCs will no longer apply under this DPA. Customer shall take all reasonable steps to determine whether the parties are required under the Applicable Data Protection Laws to either: (i) register the SCCs with any Supervisory Authority in any member state of the EU and/or Switzerland, or (b) procure approval from any such Supervisory Authority for the transfer referred to in the SCCs. Customer shall promptly inform Section upon becoming aware of such requirements.
3.3 Prior Consultation. Section agrees to provide reasonable assistance to Customer (at Customer’s expense) where, in Customer’s judgement, the type of Processing performed by Section is likely to result in a high risk to the rights and freedoms of natural persons (e.g., systematic and extensive profiling, Processing sensitive Personal Data on a large scale and systematic monitoring on a large scale, or where the Processing uses new technologies) and thus requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
3.4 Demonstrable Compliance. Section agrees to keep records of its Processing in compliance with Applicable Data Protection Laws and provide such records to Customer upon request. If Section is collecting Customer Personal Data on Customer’s behalf, such records shall include but not be limited to (i) the legal basis for Processing specified by Customer or (ii) records of the verifiable consent specified by Customer under Applicable Data Protection Laws.
4. INFORMATION SECURITY
Section will maintain appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Personal Data, including those described in the Agreement.
5. ASSESSMENTS, AUDITS AND REMEDIATION
5.1 Assessments. Records to demonstrate compliance with this DPA and Applicable Data Protection Laws will be maintained by Section and provided to Customer upon request. Section will complete within two weeks any reasonable data protection questionnaire provided by Customer.
5.2 Audits. For the purpose of verifying Section’s compliance with Applicable Data Protection Laws and this DPA, Customer may request an on-site audit of the procedures relevant to the protection of Personal Data under this DPA. Prior to allowing any on-site audit, Section shall provide a copy of Section’s most recent relevant third-party audits or certifications, as applicable, or any summaries thereof to Customer. If the information made available pursuant to the preceding sentence is insufficient, in Customer’s reasonable judgement, to confirm Section’s compliance with its obligations under this DPA, then, Section agrees to permit Customer, upon reasonable notice of no less than thirty (30) days, at Customer’s cost, and no more than once annually, to conduct on-site audits through a Section-approved third-party auditor. However, Section agrees to allow audits to be conducted directly by Customer where, under Applicable Data Protection Laws, Customer is required to conduct audits directly. Section agrees to cooperate in good faith with the audit and promptly (i) provide access to books, records (including, but not limited to, security scan records), systems, files, and other information necessary for the audit, and (ii) at Customer’s request enable access to Section’s premises if absolutely necessary to properly conduct the audit or required under Applicable Data Protection Laws. Notwithstanding the forgoing, Customer may not conduct any security scans or other intrusion testing on Section’s systems without the express prior written consent of Section. Customer agrees to (x) schedule audits to minimize disruption to Section’s business, (y) require any third party it employs to sign a non-disclosure agreement, and (z) make the results of the audit available to Section. Customer will only disclose the results of the audit to third parties to the extent such disclosure is (A) required to demonstrate Customer’s own compliance, or (B) otherwise required under the Applicable Data Protection Laws.
5.3 Remediation. Section agrees to promptly take action to correct any documented material security issue affecting Customer Personal Data identified by such audit and to inform Customer of such actions. If action is not promptly taken, Customer’s sole remedy will be to terminate any or all Order Forms at Customer’s discretion provided that Section will incur no penalty for any such termination.
6. SECURE DISPOSAL
Customer Personal Data will be securely disposed (i) during the term of the Agreement upon Customer’s written request if such Customer Personal Data is no longer reasonably required to perform the Services, (ii) at the termination of the provision of the Services. If instructed by Customer, a copy of such Customer Personal Data will be returned to Customer prior to disposal. Section may retain Customer Personal Data to the extent that it is required to do so under Applicable Data Protection Laws.
7. CHANGES TO REQUIREMENTS
The parties will work together in good faith to amend or supplement this DPA from time to time to reflect new requirements under Applicable Data Protection Laws.
8. SECURITY INCIDENT
8.1 Policy. Section maintains reasonable Security Incident management policies and procedures and will, to the extent required under
Applicable Data Protection Laws, notify Customer without undue delay after becoming aware of any Security Incident. Section will make reasonable efforts to identify the cause of such Security Incident and take those steps as Section deems necessary and reasonable in order to remediate the cause of such Security Incident to the extent the remediation is within Section’s reasonable control. The obligations in this Section shall not apply to Security Incidents that are caused by Customer or Customer’s Users.
8.2 Reports. Upon request by Customer, Section will enable Customer to review the results of and reports relating to the investigation and response to a Security Incident, which Customer will treat as Confidential Information of Section.
9. TERMINATION OBLIGATIONS
Notwithstanding anything to the contrary in the Agreement or this DPA, Customer may terminate any Order Form, or any portion thereof, immediately upon written notice to Section, and without judicial notice or resolution or prejudice to any other remedies, in the event a data protection or other regulatory authority or other tribunal or court in any country finds there has been a breach of Applicable Data Protection Laws by virtue of Customer’s or Section’s Processing of Customer Personal Data in connection with the Agreement, and such breach has not been cured within sixty (60) days of Section’s receiving notice thereof.
10. LIMITATION OF LIABILITY
Nothing in these Terms is intended to prejudice or limit any of Section’s right to limitations of liability afforded to data processors pursuant to any Applicable Data Protection (including, for example, Annex III, Section 3 (“Secondary Liability”) of the Privacy Shield) or other laws applicable to the Services (including, for example, Articles 12-14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”). Without prejudice to any limitations afforded to data processors under any Applicable Data Privacy Laws, each party’s liability arising out of or related to this DPA (whether in contract, tort or under any other theory of liability) is subject to the limitations of liability set forth in the Agreement; provided, in no event will such limitation apply to any Data Subject’s rights under the SCCs, or any Applicable Data Privacy Laws.
11. CONTACT INFORMATION
Section will designate a point of contact as its “Privacy and Security Coordinator”. This Privacy and Security Coordinator will: (i) maintain responsibility for applying adequate protections to Customer Personal Data, including the development, implementation, and maintenance of its information security program, (ii) oversee application of Section compliance with the requirements of this DPA, and (iii) serve as a point of contact for internal communications and communications with Customer pertaining to this DPA and compliance with or any breaches thereof.
[remainder of page intentionally left blank]
In Witness Whereof, the parties have caused this Data Processing Addendum to be executed as of the date executed by Customer.
Nature and Purpose of Processing
Section will Process Personal Data as necessary to perform the Services pursuant to the Agreement, and as further instructed by Customer in its use of the Services.
Duration of Processing
Section will Process Personal Data for the duration of the term of the Agreement, as provided in the DPA, and as otherwise agreed upon in writing.
Categories of Data Subjects
Data Subjects include the identified or identifiable persons contained in content or requests, including internet protocol (IP) addresses, caused to be submitted to Section via the Services according to, by or at the direction of Customer’s configuration of the Services.
Type of Personal Data
• Personal Data relating to an identified or identifiable persons contained in content or requests, including internet protocol (IP) addresses, caused to be submitted to Section via the Services according to, by or at the direction of Customer’s configuration of the Services.
Special Categories of Data
• Special categories of data in this content or these requests may include Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and the processing of data concerning health or sex life.
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name, Address, Tel., Fax, E-Mail of the data exporting organisation:
See ordering document or other agreement pursuant to which data exporter purchases services from data importer. (the data exporter)
Name of the data importing organisation: Section, Incorporated
Address: 1105 Spruce St., Boulder, CO 80302
Tel: N/A; fax: N/A; e-mail: email@example.com
Other information needed to identify the organisation:
section.io, Incorporated (“Section.io”)
(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.
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.
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.
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.
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).
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.
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
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.
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.
On behalf of the data exporter:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
On behalf of the data importer:
Name (written out in full): Section, Incorporated
Position: Chief Executive Officer
Address: 1105 Spruce St., Boulder, CO 80302
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
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 (please specify briefly your activities relevant to the transfer):
(i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and, (ii) all affiliates of such entity established in the European Economic Area (EEA) and Switzerland that have purchased Services from Section.
The data importer is (please specify briefly activities relevant to the transfer): a provider of a website performance, scalability, and security platform for its clients (“data exporter” or “data controller”) that processes personal data upon the instruction of the data exporter pursuant to the Agreement.
The personal data transferred concern the following categories of data subjects (please specify): The identified or identifiable persons contained in content or requests, including internet protocol (IP) addresses, caused to be submitted to data importer via the services it offers according to, by or at the direction of data exporter’s configuration of such services.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Personal data relating to an identified or identifiable persons contained in content or requests, including internet protocol (IP) addresses, caused to be submitted to Section via the services it offers according to, by or at the direction of data exporter’s configuration of such services.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Special categories of data in this content or these requests may include personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and the processing of data concerning health or sex life.
The personal data transferred will be subject to the following basic processing activities (please specify): Personal data may be transferred through a third party hosted cloud environment or through SFTP or API protocols. All transfers shall be in accordance with the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
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):
Appendix 2 to the Standard Contractual Clauses (Section as Data Importer)
See section 4 of the DPA.