This Splitmetrics Data Processing Agreement (“DPA”), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, reflects the parties’ agreement with respect to the terms governing the processing of Personal Data under the Terms of Service (the “Agreement”). This DPA is an amendment to the Agreement and is effective upon accepting the Agreement.
The Controller has selected the Processor to act as a service provider in accordance with Art. 28 of Regulation (EU) 2016/679 on the protection of natural persons regarding the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, “GDPR”).
The terms “personal data”, “data processing”, “data controller” or “controller”, “data processor” or “processor”, “data subject” and “special categories of personal data” shall have the meaning given to them in the Applicable Data Protection Law. “Controller” means Customer as defined in the Agreement.
“Processor” means Provider as defined in the Agreement.
“Applicable Data Protection Law” means 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, and repealing Directive 95/46/EC (General Data Protection Regulation) together with any applicable implementing legislation or regulations, as well as EU Member State laws, as amended from time to time;
“Services” means the services provided by the Processor under the Agreement;
2. SUBJECT MATTER
The Processor shall process personal data on behalf of and in accordance with the instructions of the Controller. The Processor will engage sub-processors pursuant to the requirements set forth in Section 5 below. List of current sub-processors is available at: https://splitmetrics.com/legal/subprocessors/.
2.2. The Controller’s instructions
The Controller shall, in its use of the Services and provision of instructions, process personal data in accordance with the requirements of the Applicable Data Protection Law. For the avoidance of doubt, the Controller’s instructions for the processing of personal data shall comply with the Applicable Data Protection Law. The Controller shall have sole responsibility for the accuracy, quality, and legality of personal data and the means by which the Controller acquired personal data.
2.3. Keeping records
The Processor shall assist the Controller in its maintenance of records of processing activities pursuant to Art. 30 GDPR and provide the Controller with the necessary information in an appropriate manner. Furthermore, the Processor shall keep its own records of processing activities with respect to all processing activities carried out on behalf of the Controller, as required under Art. 30 (2) GDPR.
3. PURPOSES 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 Annex 1 to this DPA.
4. RIGHTS OF DATA SUBJECTS
4.1. Data Subject’s requests
The Processor shall, to the extent legally permitted, promptly notify the Controller if the Processor receives any requests from a data subject to exercise the following data subject rights in relation to their personal data: access, rectification, restriction of processing, erasure (“right to be forgotten”), data portability, objection to the processing, or to not be subject to an automated individual decision making (each, a “data subject request”). Taking into account the nature of the processing, the Processor shall assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to the data subject request under the Applicable Data Protection Law. In addition to the extent, the Controller, in its use of the Services, does not have the ability to address the data subject request, the Processor shall, upon the Controller’s request, provide commercially reasonable efforts to assist the Controller in responding to such data subject request, to the extent the Processor is legally permitted to do so and the response to such data subject request is required under the Applicable Data Protection Law. To the extent legally permitted, the Controller shall be responsible for any costs arising from the Processor’s provision of such assistance, including any fees associated with provision of additional functionality.
4.2. The Controller’s rights under processing of personal data
The Processor will, in a manner consistent with the functionality of the Service or per request, enable the Controller to access, rectify and restrict processing of personal data.
5.1. Appointment of the sub-processor
The Controller acknowledges and agrees that the Processor may engage third-party sub-processors in connection with the provision of the Services. As a condition to permitting a third-party sub-processor to process personal data, the Processor will enter into a written agreement with each sub-processor containing data protection obligations that provide at least the same level of protection for personal data as those in this DPA, to the extent applicable to the nature of the Agreement provided by such sub-processor. In either case, the Controller agrees to enter into the Standard Contractual Clauses where necessary acknowledging that sub-processors may be appointed by the Processor in accordance with Clause 11 of Standard Contractual Clauses.
5.2. A current list of sub-processors
A current list of sub-processors for the Agreement, is accessible by the following link: https://splitmetrics.com/legal/subprocessors/. The Controller will receive notifications of new sub-processors before authorizing such new sub-processor(s) to process personal data in connection with the provision of the applicable Agreement.
5.3. Objection Right for New Sub-Processors
The Controller may reasonably object to the Processor using a new sub-processor (e.g., if making personal data available to the sub-processor may violate the Applicable Data Protection Law or weaken the protections for such personal data) by notifying the Processor promptly in writing within five (5) business days after receipt of the Processor’s notice in accordance with the mechanism set out in Section 5.2. Such notice shall explain the reasonable grounds for the objection. In the event the Controller objects to a new sub-processor, as permitted in the preceding sentence, the Processor will use commercially reasonable efforts to make available to the Processor a change in the Agreement or recommend a commercially reasonable change to the Controller’s configuration or use of the Agreement to avoid processing of personal data by the objected new sub-processor without unreasonably burdening the Controller. If the Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) calendar days, either party may terminate without penalty the applicable Agreement which cannot be provided by the Processor without the use of the objected new sub-processor by providing written notice to the Processor.
The Processor shall be liable for the acts and omissions of its sub-processors to the same extent the Processor would be liable if performing the Agreement of each sub-processor directly under the terms of this DPA.
6. DATA TRANSFERS
6.1. Data Storage and Processing Facilities
The Controller agrees that the Processor may, subject to Section 6.2, store and process personal data in the United States and any other country in which the Processor or any of its sub-processors maintains facilities.
6.2. Mechanism of Transfer of Personal Data
For transfers of the personal data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories the Controller agrees to enter into Standard Contract Clauses.
7.1. Technical and organization measures
The Processor shall maintain appropriate technical and organizational measures provided in Annex 2 for protection of the security, confidentiality, and integrity of the Controller’s personal data.
7.2. Compliance control
The Processor regularly monitors compliance with these measures and will provide the Controller with supporting documentation, such as audit information, where applicable.
8. PERSONAL DATA BREACH
8.1. Notification of Data Breach
The Processor shall, to the extent permitted by law, notify the Controller without undue delay upon the Processor or any sub-processor becoming aware of a personal data breach affecting the Controller’s personal data, providing the Controller with sufficient information, to allow the Controller to meet any obligations to report or inform data subjects of the personal data breach under the Applicable Data Protection Law.
The Processor shall cooperate with the Controller and take reasonable commercial steps to assist in the investigation, mitigation and remediation of each such personal data breach.
The Controller shall be entitled to monitor compliance with the provisions on data protection and this DPA to the extent necessary, and may perform the inspections itself or using third parties, at the Controller’s cost, in particular by obtaining information and inspecting the stored data and systems as well as other on-site checks. The Controller shall give ten (10) business days’ prior notices of audits and they shall be carried out during ordinary business hours.
The Processor shall take all reasonable steps to ensure the reliability of any staff who may have access to personal data and ensure such staff are subject to appropriate obligations of confidentiality and at all times act in compliance with the Applicable Data Protection Law.
ANNEX 1 Processing of Personal Data
Annex 1 is an integral part of this DPA. This Annex describes the Processor’s personal data protection activities. The categories of data to be processed depend on the type of the Services.
The personal data to be processed concern the following categories of data subjects:
representatives of the Controller;
users of the Controller’s mobile apps.
The Services available at acquire.splitmetrics.com domain collect and process the following categories of data:
Categories of data
The personal data transferred concerns the following categories of data:
First name, last name, email and internet protocol (IP) of the Controller’s representative;
Payment card details of the Controller (if the Controller pays for the Services by card);
Personal data of users of the Controller’s mobile apps:
a. technical data ‒ mobile apps version, operating system version, type of device;
b. usage data ‒ information on usage of website, products, and services.
The Services available at optimize.splitmetrics.com domain collect and process the following categories of data:
The personal data transferred concerns the following categories of data:
First name, last name, email and internet protocol (IP) of the Controller’s representative;
Payment card details of the Controller (if the Controller pays for the Services by card);
Personal data of users of the Controller’s mobile apps:
b. technical data ‒ internet protocol (IP) address, browser type and version, device type, browser plug-in types and versions, operating system and platform and other technology on the devices;
c. profile data ‒ purchases or orders made by users, preferences;
d. usage data ‒ information on usage of mobile apps and services.
Special categories of data
The processing of the sensitive personal data: n/a
The personal data transferred will be subject to the following basic processing activities:
Scope of processing activities
Personal data may be processed for the following purposes: provide the Services and related technical support services, improve Services;
The Controller instructs the Processor to process personal data in countries in which the Processor or any of its sub-processors maintains facilities.
Term of processing activities Personal data processing will be for the Agreement term. Such term will automatically terminate upon the deletion by the Processor of all data as described in the DPA.
Data deletion During the term of the Agreement, the Processor will provide the Controller with the ability to delete the Controller’s personal data from the Services in accordance with the DPA. After termination or expiry of the Agreement, the Processor will delete the Controller’s personal data.
Access to data During the term of the Agreement, the Processor will provide the Controller with access to and the ability to correct, block and export the Controller’s personal data.
Sub-processors The Processor may engage sub-processors to provide parts of the Services and related technical support services. The Processor will ensure sub-processors only access and use the Controller’s personal data to provide the Services and related technical support services and not for any other purpose. List of current sub-processors is available by the following link: https://splitmetrics.com/legal/subprocessors/.
ANNEX 2 Technical and organizational measures
The Processor will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data provided by the Controller:
1. Data Centers
The Processor’s stores all production data in physically secure data centers.
Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks.
The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, and 7 days a week.
2. Access Control
Data is prevented from being read, copied, altered or removed without authorization during electronic transfer or while being recorded onto data storage media.
The Processor monitors a variety of communication channels as well as internal indicators for security incidents, and the Data Processor’s security personnel will react to known incidents.
The Data Processor’s data centers maintain an on-site security operation responsible for all physical data center security functions 24 hours a day, 7 days a week.
The Data Processor has, and maintains, a security policy for its personnel, and requires criminal background checks for the personnel with access to production data. Access to the infrastructure as well as data is provided on “need to know” basis to minimize access to Data Controller’s data. The Data Controller’s administrators must authenticate themselves via a central authentication system or via a single sign on system in order to use the Services.
3. Personnel Security
The Data Processor’s personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. The Data Processor conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable regulations.
Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, the Data Processor’s confidentiality and privacy policies. Personnel handling Data Controller’s data are required to complete additional requirements appropriate to their role (e.g., criminal background check and extended probation period).
4. Depersonalization measurers
The Processor uses the measures which reduce direct references to persons during processing in such a way that it is only possible to associate data with a specific person.
5. Input Control
The Processor should apply measures that can establish by whom was entered into, altered in, or removed from data processing systems.
The Processor is logging of all system activities and keeping these logs for at least three years.
During the processing, the Processor applies protocol evaluation systems.
For the performance of obligations, the Processor uses checksums and digital signatures.
6. Logical Access Control
The Processor is obliged to make efforts that only authorized person has to ability accessing the Controller’s personal data.
For this purpose, the Processor implemented the following measures: authentication procedures, logging of authentication attempts and aborting the logon process after a specific number of unsuccessful attempts, regularly updated antivirus and spyware filters.
The Processor has the access list which including persons who is authorized to access to the personal data. This list can include employees and contractors.
The Processor confirms that each employee has personal and individual login credentials when logging on to the system.
7. Data access control
The Processor confirms that authorized persons use personal data according to their access rights.
Personal data cannot be read, copied, changed or removed without authorization during processing, use and storage.
During processing the Processor uses SSH keys, authorization concept and logging of access and abuse attempts.
8. Separation rule
Processing is based on the separation rule.
The separation rule means that personal data stored, process separately from each other on the assumption of the nature and purpose of the personal data.
9. Data integrity
The Processor implemented measures which protect Personal Data from malfunctioning of the system. Personal data can not be corrupted or other ways change.
The Processor introduces of new releases and patches with release.
The Processor provides functional test during installation and releases.
With respect to the data integrity the processor uses logging and transport processes with individual responsibility.
10. Transport control
When transferring data, the Processor provides measures which provide an appropriate level of personal data protection during such transferring.
When personal data transferring, it must be provided via encrypted data networks or tunnel connections (VPN).
Data transmission is in accordance with personal responsibility.
When personal data is transported, the Processor uses encryption methods that detect data changes during transport.
For data carriers the Processor gives secure transport container.
The Processor develops comprehensive logging procedures.
11. Transmition control
For the purposes of verification and establishing to which bodies personal data have been transmitted or made available using data communication equipment the Processor uses logging and checksum.
When such transmission will be carried out, it will be carried out with individual responsibility
STANDARD CONTRACTUAL CLAUSES
COMMISSION DECISION C(2010)593 STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection. Customer as defined in the Agreement available at https://splitmetrics.com/legal/terms-of-service/ (the ‘data exporter’) and SplitMetrics Inc., 108 W. 13th Street, Suite 100, Wilmington, DE 19801 (along with its affiliates contractually bound by these Clauses and that may transfer personal data of the data exporter, 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:
‘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;
‘the data exporter’ means the controller who transfers the personal data;
‘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;
‘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;
‘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;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2 Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4 Obligations of the data exporter
The data exporter agrees and warrants:
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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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;
that it will ensure compliance with the security measures;
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;
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;
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;
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
that it will ensure compliance with Clause 4(a) to (i).
Clause 5 Obligations of the data importer
The data importer agrees and warrants:
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;
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;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:
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,
any accidental or unauthorised access, and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
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;
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;
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;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6 Liability
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entityThe data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7 Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.
The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8 Cooperation with supervisory authorities
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9 Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 10 Subprocessing
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12 Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.