DATA PROCESSING ADDENDUM - SUBSCRIPTION
This Data Processing Addendum (“DPA”) is an agreement between BEAR COGNITION, INC and its family of brands___[PROCESSOR]____ (including its Affiliates) (collectively, “Processor”) and each customer (and their affiliates) who is a party to: 1) the Perceptivity Software Subscription Agreement; or BEAR FRANCHISING, INC and its family of brands2) the Bear Cognition Master Professional Services and Licensing Agreement (collectively, “Controller”) and is annexed to and supplements such agreements our [MASTER SERVICES AGREEMENT], Privacy Policies and any and all agreements governing such agreements (collectively, the “Terms of Service”) when the GDPR applies to your use of Processor’s services to process Controller Data. Unless otherwise defined in this DPA or in the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 17 of this DPA.
1. Data Processing.
1.1 Scope and Roles. This DPA applies when Controller Data is processed by Processor. In this context, Processor will act as “processor” to Controller who may act either as “controller” or “processor” with respect to Controller Data (as each term is defined in the European Union’s General Data Protection Regulation (“GDPR”)).
1.2 Controller Controls. The services provided by Processor to Controller (“Services”) include a number of controls, such as security features and functionalities, that Controller may use to retrieve, correct, delete or restrict Controller Data as described in the Documentation. Without prejudice to Section 5.1, Controller may use these controls as technical and organizational measures to assist it in connection with its obligations under applicable privacy lawsthe GDPR, including its obligations relating to responding to requests from data subjects.
1.3 Details of Data Processing.
1.3.1 Subject matter. The subject matter of the data processing under this DPA is Controller Data.
1.3.2 Duration. As between Processor and Controller, the duration of the data processing under this DPA is coextensive with the Terms of Service, recognizing that some obligations may survive termination of such agreementsdetermined by Controller.
1.3.3 Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by Controller or Controller’s end-users from time to time.
1.3.4 Nature of the processing: Computing, storage and such other Services as described in the Terms of Service and initiated by Controller or end-users from time to time.
1.3.5 Type of Controller Data: Controller Data uploaded to the Services under Controller’s hosting account.
1.3.6 Categories of data subjects: The data subjects may include Controller’s customers, employees, suppliers and end-users.
1.4 Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
2. Controller Instructions. The parties agree that this DPA and the Terms of Service constitute Controller’s documented instructions regarding Processor’s processing of Controller Data (“Documented Instructions”). Processor will process Controller Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Processor and Controller, including agreement on any additional fees payable by Controller to Processor for carrying out such instructions. Controller is entitled to terminate this DPA and the Agreement if Processor declines to follow instructions requested by Controller or engages in processing that is that are outside the scope of, or changed from, those given or agreed to be given in this DPA or other written instruction from Controller.
3. Confidentiality of Controller Data. Processor will not access or use, or disclose to any third party, any Controller Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Processor a demand for Controller Data, Processor will attempt to redirect the governmental body to request that data directly from Controller. As part of this effort, Processor may provide Controller’s basic contact information to the government body. If compelled to disclose Controller Data to a law enforcement agency or government body, then Processor will give Controller reasonable notice of the demand to allow Controller to seek a protective order or other appropriate remedy unless Processor is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.
4. Confidentiality Obligations of Processor Personnel. Processor restricts its personnel from processing Controller Data without authorization by Processor as described in the Processor Security Standards. Processor imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
5. Security of Data Processing
5.1 Processor has implemented and will maintain the technical and organizational measures for the Services as described herein this Section and as further described in Annex 1 to this Addendum, Security Standards. In particular, Processor has implemented and will maintain the following technical and organizational measures that address the (i) security of Processor Network; (ii) physical security of the facilities housing the network; (iii) controls around employee and contractor access to (i) and/or (ii); and (iv) processes for testing, assessing and evaluating the effectiveness of technical and organizational measures implemented by Processor.
5.2 Processor may make available certain security features and functionalities that Controller may elect to use in relation to the Services. Controller is responsible for (a) properly configuring the Services, (b) using the controls available in connection with the Services (including the security controls) to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (c) using the controls available in connection with the Services (including the security controls) to allow the Controller to restore the availability and access to Controller Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Controller Data), and (d) taking such steps as Controller considers adequate to maintain appropriate security, protection, and deletion of Controller Data, which includes use of encryption technology to protect Controller Data from unauthorized access and measures to control access rights to Controller Data.
6.1 Authorized Sub-processors. Controller agrees that Processor may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. The Processor shall provide Controller with a list ofwebsite lists sub-processors that are currently engaged by Processor to carry out processing activities ofn Controller Data on behalf of Controller (if any). Where Processor uses any authorized Sub-processor as described herein:
(i) Processor will restrict the Sub-processor’s access to Controller Data only to what is necessary to maintain the Services or to provide the Services to Controller and any end-users in accordance with the Services. Processor will prohibit the Sub-processor from accessing Controller Data for any other purpose;
(ii) Processor will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor is performing the same data processing services that are being provided by Processor under this Addendum, Processor will impose on the Sub-processor the same contractual obligations that Processor has under this Addendum (including but not limited to any Standard Contractual Clauses hereto); and
(iii) Processor will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of the Sub-processor that cause Processor to breach any of Processor’s obligations under this Addendum.
(iv) From time to time, Processor may engage new Sub-processors under and subject to the terms of this Addendum. In such case, Processor will provide sixty (60) calendar days advance notice (via our website and email) prior to any new Sub-processor obtaining any Controller Data. If Controller does not approve of a new Sub-processor, then Controller may terminate any Services without penalty by providing, within 10 days or receipt of notice from us, written notice of termination that includes an explanation of the reasons for your non-approval. If the Services are part of a bundle or bundled purchase, then any termination will apply to its entirety.
6.2 Sub-processor Obligations. Where Processor engagesauthorizes any sub-processor as described in Section 6.1:
(i) Processor will restrict the sub-processor’s access to Controller Data only to what is necessary to maintain the Services or to provide the Services to Controller and any End Users in accordance with the Documentation and Processor will prohibit the sub-processor from accessing Controller Data for any other purpose;
(ii) Processor will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by Processor under this DPA, Processor will impose on the sub-processor the same contractual obligations that Processor has under this DPA; and
(iii) Processor will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause Processor
to breach any of Processor’s obligations under this DPA.
7. Data Subject Rights - Taking into account the nature of the Services, Processor may offer Controller certain controls as described in Sections 1.2 and 5.2 that Controller may elect to use to comply with its obligations towards data subjects. Should a data subject contact Processor with regard to correction or deletion of its personal data, Processor will use commercially reasonable efforts to promptly forward such requests to Controller.
8. Optional Security Features. Processor may make available a number of security features and functionalities that Controller may elect to use. Controller is responsible for (a) implementing the measures described in Section 5.2, as appropriate, (b) properly configuring the Services, (c) using the controls available in connection with the Services (including the security controls) to allow Controller to restore the availability and access to Controller Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Controller Data), and (d) taking such steps as Controller considers adequate to maintain appropriate security, protection, and deletion of Controller Data, which includes use of encryption technology to protect Controller Data from unauthorized access and measures to control access rights to Controller Data.
9. Security Breach Notification.
9.1 Security Incident. Processor will (a) notify Controller of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
9.2 Processor Assistance. To assist Controller in relation to any personal data breach notifications Controller is required to make under applicable lawthe GDPR, Processor will include in the notification to Controller under section 9.1(a) such information about the Security Incident as Processor is reasonably able to disclose to Controller, taking into account the nature of the Services, the information available to Processor, and any restrictions on disclosing the information, such as confidentiality.
9.3 Unsuccessful Security Incidents. Controller agrees that:
(i) an unsuccessful Security Incident will not be subject to this Section 9. An unsuccessful Security Incident is one that results in no unauthorized access to or alteration of Controller Data or to any of Processor’s equipment or facilities storing Controller Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
(ii) Processor’s obligation to report or respond to a Security Incident under this Section 9 is not and will not be construed as an acknowledgement by Processor of any fault or liability of Processor with respect to the Security Incident.
9.4 Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Controller’s administrators by any means Processor selects, including via email. It is Controller’s sole responsibility to ensure Controller’s administrators maintain accurate contact information on the Processor management console and secure transmission at all times.
10. Controller Audit Rights. - Controller has the right to confirm Processor’s compliance with this Addendum as applicable to the Services, including specifically Processor’s compliance with its Security Standards, by exercising a reasonable right to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by making a specific request of Processor in writing to the address set forth in its Terms of Service. If Processor declines to follow any instruction requested by Controller regarding a properly requested and scoped audit or inspection, Controller is entitled to terminate this Addendum and the Terms of Service. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses. This Section will also apply insofar as Processor carries out the control of Sub-processors on behalf of the Controller.
11. Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the Services and the information available to Processor, Processor will reasonably assist Controller in complying with Controller’s obligations in respect of data protection impact assessments and prior consultation as required by applicable lawpursuant to Articles 35 and 36 of the GDPR, by providing the information Processor makes available under Section 10.
12. Transfers of Personal Data - Application of Standard Contractual Clauses. To the extent required by applicable law, the Standard Contractual Clauses will apply to Controller Data constituting personal data which is transferred across national bordersthat is transferred outside the EEA, either directly or via onward transfer, where the privacy laws of the importing nation are not deemed adequate by the exporting nationto any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). To the extent that applicable privacy or data protection laws require (i) specific language to be included in an agreement, or (ii) a higher level of protection than the terms contained in the Terms of Service or herein, such specific language or more protective terms (as applicable) are hereby incorporated into this DPA and agreed to by the Controller and Processor.The Standard Contractual Clauses will not apply to Controller Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if Processor has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
13. Termination of the DPA. This DPA shall continue in force until the termination of the Agreement (the “Termination Date”), except Secs. 3, 4, 5, 6, 9, and 12 which shall survive termination of the Agreement.
14. Return or Deletion of Controller Data. During the term of the Agreement and fThe Services provide Controller with controls that Controller may use to retrieve or delete Controller Data as described in the Documentation. Up to the Termination Date, Controller will continue to have the ability to retrieve or delete Controller Data in accordance with this Section. For 90 days following the Termination Date, Controller may retrieve or delete any remaining Controller Data from Processor the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or regulatory body or it could subject Processor or its Affiliates to liability. No later than the end of this 90 day period, Controller is responsible for closingwill close all Processor accounts and. Processor will delete Controller Data and instruct all sub-processors to delete Controller Datawhen requested by Controller by using the Service controls provided for this purpose by Processor. Throughout the duration of the Terms of Service and following its termination, Processor shall retain all right, title, and interest to any aggregated or anonymized data derived from Controller Data and may continue to use such aggregated or anonymized data for its own purposes.
15. Duties to Inform. Where Controller Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Processor, Processor will inform Controller without undue delay. Processor will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Controller Data subjected to those proceedings is Controller’s property and area of responsibility and that Controller Data is at Controller’s sole disposition.
16. Entire Agreement; Conflict. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control.
17. Definitions. Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below:
“Processor Network” means Processor’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within Processor’s control and are used to provide the Services.
“Processor” means BEAR COGNITION, INC and its affiliates.
“Processor Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.
“Controller” means each customer (and their affiliates) who is a party to: 1) the Perceptivity Software Subscription Agreement; or BEAR FRANCHISING, INC and its family of brands2) the Bear Cognition Master Professional Services and Licensing Agreement (collectively, “Controller”) and is annexed to and supplements such agreementsour [MASTER SERVICES AGREEMENT], Privacy Policies and any and all agreements governing such agreements BEAR FRANCHISING, LLC and its affiliates.
“Controller Data” means datathe “personal data” (as defined in the GDPR) that is uploaded to the Services under Controller’s Processor accounts. The term “Controller Data” does not include any aggregated or anonymized data derived from data uploaded by Controller, which aggregated or anonymized data shall be owned by Processor.
“EEA” means the European Economic Area.
“GDPR” means Regulation 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).
“processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Security Incident” means a breach of Processor’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Controller Data.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
Processor Security Standards: Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Agreement.
1. Information Security Program. Processor will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Controller secure Controller Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access or alteration to the Processor Network and/or Controller Data, and (c) minimize security risks, including through risk assessment and regular testing. Processor will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 TechnicalNetwork Security. The Processor Network will be electronically accessible to employees, contractors and any other person authorized by Processor whose access isas necessary to provide the Services. Processor will maintain access controls and policies to manage what access is allowed to the Processor Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. Processor will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
1.2.1 Physical Access Controls. Physical components of the Processor Network are housed in physical facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. Processor provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Processor or its Affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. Processor also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.
1.3 Administrative Security. Processor will adopt, implement, and maintain administrative policies, processes, and controls to manage its information security program, including but not limited to: 1) a written cybersecurity policy describing Processor’s information security program; 2) an incident response plan; 3) a periodic risk assessment; and 4) a written policy addressing management of privacy and security risks relating to vendor and third-party service provider management.
2. Continued Evaluation. Processor will conduct periodic reviews of the security of its Processor Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. Processor will continually evaluate the security of its Processor Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
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
Each customer of BEAR COGNITION, LLCBEAR FRANCHISING, LLC, the entity identified as “Controller” in the DPA (the “data exporter”)
BEAR COGNITION, LLC______________________________
(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
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.
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.
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.
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.
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).
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.
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.
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
BEAR FRANCHISING, LLC, the data exporter is the entity identified as “Controller” in the DPA
The data importer is _________________________.
Data subjects are defined in Section 1.3 of the DPA.
Categories of data:
The personal data is defined in Section 1.3 of the DPA.
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing operations are defined in Section 1.3 of the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described in the DPA.
 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.