Data Processing Addendum
Posted: May 23, 2018
Effective: May 25, 2018
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) forms part of the Agreement between Dharma Platform, Inc. (“Dharma.ai”) and you (the “Client”).
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTANCE. BY SELECTING “I ACCEPT”, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS IN THIS ADDENDUM. YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND POWER TO BIND A COMPANY OR LEGAL ENTITY IN THE CASE YOU ENTER THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY. IF YOU DO NOT AGREE TO EACH TERM AND CONDITION OF THIS ADDENDUM, SELECT “I DECLINE”. YOU MAY NOT USE THESE SERVICES IN THE EUROPEAN ECONOMIC AREA (EEA) WITHOUT ACCEPTING THE TERMS AND CONDITIONS OF THIS ADDENDUM.
Upon selecting “I Accept” you (the “Client”) and Dharma.ai are bound by this Addendum on the later of (a) the time/date the Client selects “I Accept” and (b) 25 May 2018 (the “Addendum Effective Date”).
1.1. All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.
1.2. “Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
1.3. “Agreement” means Dharma.ai’s Customer Agreement, which govern the provision of the Services to the Client.
1.4. “Client Data” means any personal data that Dharma.ai and/or its Affiliates and service providers process on behalf of the Client as a processor in the course of providing Services, as more particularly described in this DPA.
1.5. “Data Protection Laws” means all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law.
1.6. “EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
1.7. “EEA” means the European Economic Area, United Kingdom and Switzerland.
1.8. “Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
1.9. “Privacy Shield Principles” means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
1.10. “Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Client Data.
1.11. “Services” means any product or service provided by Dharma.ai to the Client pursuant to the Agreement.
1.12. “Sub-processors” means the other processors that are used by Dharma.ai to process Client data.
2. Relationship with the Agreement
2.1. The parties agree that the DPA shall replace any existing data processing addendum the parties may have previously entered into in connection with the Services.
2.2. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3. Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the disclaimers, exclusions, dispute resolutions procedures, and limitations set forth in the Agreement.
2.4. The Client further agrees that any regulatory penalties incurred by Dharma.ai in relation to Client Data that arise as a result of, or in connection with, the Client’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Dharma.ai’s liability under the Agreement as if it were liability to the Client under the Agreement.
2.5. No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1. This DPA applies where and only to the extent that in the course of providing Services pursuant to the Agreement Dharma.ai processes as a processor on behalf of the Client, Client Data that originates from the EEA or that is otherwise subject to EU Data Protection Law.
3.2. Part A and Schedule 1 of this DPA shall apply to the processing of Client Data within the scope of this DPA from the Effective Date.
3.3. Part B shall apply to the processing of Client Data within the scope of the DPA on or following 25th May 2018. For the avoidance of doubt, Part B shall apply in addition to, and not in substitution for, the terms in Part A.
Part A: General Data Protection Obligations
4. Roles and Scope of Processing
4.1. Role of the Parties. As between Dharma.ai and the Client, the Client is the controller of Client Data and Dharma.ai shall process Client Data only as a processor acting on behalf of the Client.
4.2. Client Processing of Client Data. The Client agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Client Data and any processing instructions it issues to Dharma.ai; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Dharma.ai to process the Client Data and provide the Services pursuant to the Agreement and this DPA.
4.3. Dharma.ai Processing of Client Data. Dharma.ai shall process the Client Data only for the purposes described in this DPA and only in accordance with the Client’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Client’s complete and final instructions to Dharma.ai in relation to the processing of Client Data and processing outside the scope of these instructions (if any) shall require prior written agreement between the Client and Dharma.ai.
4.4. Details of Data Processing. The following items as relating to (i) this DPA and (ii) the Agreement are outlined in Schedule 1: subject matter, duration, purpose and nature of the processing; categories of data subjects and types of client data.
4.5. Dharma.ai’s Use of Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), the Client acknowledges and agrees that Dharma.ai shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development, and sales and marketing.
5.1. Authorized Sub-processors. The Client agrees that Dharma.ai may engage sub-processors to process Client Data on the Client’s behalf. The sub-processors currently engaged by Dharma.ai and authorized by the Client are listed in Schedule 1.
5.2. Sub-processor Obligations. Processor shall work with sub-processors in a responsible manner. Dharma.ai shall only use Sub-Processors located outside the EEA who have signed a Data Protection Agreement and are bound by Standard Contractual Clauses.
6.1. Security Measures. Dharma.ai shall implement and maintain appropriate technical and organizational security measures to protect Client Data from Security Incidents and to preserve the security and confidentiality of Client Data.
7. Compliance Verification
7.1. Upon the Client’s request, Dharma.ai will provide reasonable verification of its compliance with this DPA, provided that Dharma.ai shall not be required to reveal any proprietary or confidential information and the Client shall not exercise this right more than once per year.
8. International Transfers
8.1. Data center locations. Dharma.ai may transfer and process the Client Data anywhere in the world where Dharma.ai, its Affiliates or its sub-processors maintain data processing operations. Dharma.ai shall at all times provide an adequate level of protection for the Client Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.
We rely upon a number of means to transfer personal information which is subject to the GDPR in accordance with Chapter V of the GDPR. These include:
Privacy Shield. We transfer, in accordance with Article 45 of the GDPR, personal information to companies that have certified their compliance with the EU-U.S. or Swiss-U.S. Privacy Shield Frameworks (each individually and jointly, the “Privacy Shield”).
Standard data protection clauses. We may, in accordance with Article 46 of the GDPR, transfer personal information to recipients who have entered into the European Commission approved contract for the transfer of personal data outside the European Economic Area.
Other means. We may, in accordance with Articles 45 and 46 of the GDPR, transfer personal information to recipients that are in a country the European Commission or a European data protection supervisory authority has confirmed, by decision, offers an adequate level of data protection, pursuant to an approved certification mechanism or code of conduct, together with binding enforcement commitments from the recipient to apply the appropriate safeguards, including as regards data subjects’ rights, or to processors which have committed to comply with binding corporate rules.
You can find out more information about these transfer mechanisms here.
8.2. Privacy Shield. Dharma.ai has not yet self-certified its compliance with Privacy Shield. Nonetheless, to the extent that Dharma.ai processes any Client Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, to the United States, a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for personal data, the parties acknowledge that Dharma.ai agrees to protect such personal data in accordance with the requirements of the Privacy Shield Principles. If Dharma.ai is unable to comply with this requirement, Dharma.ai shall inform the Client.
8.3. Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that Dharma.ai adopts an alternative data export solution with the Client for the lawful transfer of Client Data outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Client Data is transferred).
Part B: GDPR Obligations from 25 May 2018
9. Additional Security
9.1. Confidentiality of processing. Dharma.ai shall ensure that any person who is authorized by Dharma.ai to process Client Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2. Security Incident Response. Upon becoming aware of a Security Incident, Dharma.ai shall notify the Client without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by the Client.
10. Changes to Sub-processors
10.1. Dharma.ai shall (i) provide an up-to-date list of the sub-processors it has appointed upon written request from the Client; and (ii) notify the Client (for which email shall suffice) if it adds sub-processors at least ten (10) business days prior to any such changes.
10.2. The Client may object in writing to Dharma.ai’s appointment of a new sub-processor within five (5) business days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, the Client may suspend or terminate the Agreement (without prejudice to any fees incurred by the Client prior to suspension or termination).
11. Return or Deletion of Data
11.1. Upon termination or expiration of the Agreement, Dharma.ai shall (at the Client’s election) delete or return to the Client all the Client Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Dharma.ai is required by applicable law to retain some or all of the Client Data, which Dharma.ai shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12.1. Dharma.ai shall provide reasonable cooperation to assist the Client to respond to any requests from individuals or applicable data protection authorities relating to the processing of Client Data under the Agreement. In the event that any such request is made directly to Dharma.ai, Dharma.ai shall not respond to such communication directly without the Client’s prior authorization, unless legally compelled to do so. If Dharma.ai is required to respond to such a request, Dharma.ai shall promptly notify the Client and provide it with a copy of the request unless legally prohibited from doing so.
12.2. If a law enforcement agency sends Dharma.ai a demand for Client Data (for example, through a subpoena or court order), Dharma.ai shall attempt to redirect the law enforcement agency to request that data directly from the Client. As part of this effort, Dharma.ai may provide the Client’s basic contact information to the law enforcement agency. If compelled to disclose the Client Data to a law enforcement agency, then Dharma.ai shall give the Client reasonable notice of the demand to allow the Client to seek a protective order or other appropriate remedy unless Dharma.ai is legally prohibited from doing so.
12.3. To the extent Dharma.ai is required under EU Data Protection Law, Dharma.ai shall provide reasonably requested information regarding the Services to enable the Client to carry out data protection impact assessments or prior consultations with data protection authorities as required by law, provided that, to the maximum extent permitted under EU Data Protection Law, Dharma.ai may refrain from disclosing any of it’s proprietary or confidential information hereunder.
12.4. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in the Annex to the DPA, the Standard Contractual Clauses shall prevail.
Data Processing Schedule
- Description of the data processing that may be carried out on behalf of the Data Controller
In the addition to the information documented elsewhere in this DPA and the Agreement, the Parties wish to document the following in relation to the data processing activities:
Nature: Dharma.ai will perform data processing activities on behalf of the Client to provide the Services to the Client under the Agreement.
Activity: The data processing activity consists of data collection, data storage, data cleaning, data processing, data analysis and data presentation by using cloud hosting, storage and content delivery services.
Purpose: The purpose of data processing under this DPA is the provision of the Services to the Client and the performance of Dharma.ai’s obligations under the Agreement (including this DPA) or as agreed by the parties.
Duration: Duration of the Agreement until termination in accordance with its terms.
Locations: The locations of Dharma.ai data centers are within the EEA.
Subject matter: The subject matter of data processing under this DPA is the Client Data.
Categories of Data Subjects: Client may submit personal data to Dharma.ai, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to personal data relating to the following categories of data subjects:
- Employees of the Client
- Any individual accessing and/or using the Services through the the Client’s account (“Users”)
- Any individual whose information is stored on or collected via the Services.
Type of Personal Data: The Client may submit personal data to Dharma.ai, the extent of which is determined and controlled by the Client in its sole discretion, and which may include, but is not limited to the following categories of personal data: (a) First and last name; (b) Title; (c) Position; (d) Employer; (e) Contact information (company/organization; email address, phone, physical address); (f) ID data; (g) Professional life data (h) Personal life data (i) Connection data; (j) Localisation data; and (k) other data in an electronic form used by the Client in the context of the services.
The Client may submit special categories of data to Dharma.ai for processing under this Agreement. The Client shall determine at its sole discretion the extent to which it directs Dharma.ai to process special categories of data which is personal data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
Processing Instructions: Appropriate technical and organisational measures include: pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, taking reasonable steps to ensure the reliability of its employees with access to Personal Data and regularly assessing and evaluating the effectiveness of such measures adopted.
2. Appointed sub-processors
Dharma.ai has appointed the following sub-processors which includes links to respective data processing agreements (under GDPR) in parentheses:
- Dharma Data Ltd: subsidiary of Dharma Platform, Inc. (bound by Standard Contractual Clauses as outlined in section 5.2 of this DPA).
- Suventure Services Pvt Ltd (bound by Standard Contractual Clauses as outlined in section 5.2 of this DPA).
ANNEX TO THE DPA
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 of the data exporting organisation: the Client (the data exporter)
Name of the data importing organisation: DHARMA PLATFORM, INC., a corporation organized and existing under the laws of the United States, with its principal place of business located at 80 M Street SE, Suite 100, Washington DC 20003, United States (the data importer) each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
_Clause 1_ Definitions For the purposes of the Clauses: (a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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_ Sub-processing
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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses (i). Where the sub-processor 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 sub-processor’s obligations under such agreement.
The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for sub-processing 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 sub-processing 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 sub-processor 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 sub-processor 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):
Appendix 1 to the Standard Contractual Clauses
Data exporter The data exporter is a Client and user of Dharma Platform Inc. (“Dharma.ai”) products and services.
Data importer The data importer is Dharma.ai which provides a software-as-a-service on cloud and mobile platforms and related services, such as Client and user support which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
Data subjects The personal data transferred concern the following categories of data subjects (please specify): Data exporter may submit personal data to Dharma.ai, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to personal data relating to the following categories of data subjects:
- Employees, collaborators, advisors, freelancers of data exporter (who are natural persons)
- Data exporter’s users authorized by data exporters to use Dharma.ai Services
- Any individual whose information is stored on or collected via the Services
Categories of data Data exporter may submit personal data to Dharma.ai for processing, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of personal data: (a) First and last name; (b) Title; (c) Position; (d) Employer; (e) Contact information (company/organization; email address, phone, physical address); (f) ID data; (g) Professional life data (h) Personal life data (i) Connection data; (j) Localisation data; and (k) other data in an electronic form used by the Client in the context of the services.
Special categories of data (if appropriate) Data exporter may submit special categories of data to Dharma.ai for processing. The data exporter shall determine at its sole discretion the extent of processing of special categories of data which is personal data with information 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 data exporter is solely responsible for ensuring the legality of any special categories of data it may choose to process through the data importer’s service.
Processing operations The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of the processing of personal data by data importer is the performance of the contractual services related to the Agreement with the data exporter. The processes may include collection, storage, retrieval, analysis, use, erasure, disclosure by transmission, dissemination or otherwise making available data exporter’s data as necessary to provide the services in accordance with the data exporter’s instructions, including related internal purposes (such as quality control, troubleshooting, product development, etc.).
Accepted and agreed by the parties hereto.
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)
Data importer will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data provided by data exporter. Such safeguards include compartmentalizing the storage of such data, limiting access to only those with need to know, ensuring any person with access to the data is bound to obligations of confidentiality via statute or contract.
Accepted and agreed by the parties hereto.
The parties have caused this Addendum to be executed by their duty authorized representatives as of the Addendum Effective Date by Dharma.ai offering this Addendum and the Client clicking “I Accept”.