ANNEX II DATA PROCESSING AGREEMENT: LucidLink Customers
This Data Processing Agreement (DPA) regulates the relations between LucidLink and Customer in connection with the personal data processing (to the extent such processing might take place) by LucidLink on behalf of the Customer for the purposes of the Services provision under the LucidLink Terms of Service. This DPA also applies to the relations between LucidLink and Customer for the provision of Services with Storage, as defined in the Terms and Conditions and this DPA.
This DPA DOES NOT APPLY to processing of personal data by LucidLink in its capacity of a data controller, i.e. in situations where LucidLink determines the purposes and the means of the processing – e.g. (i) for processing of personal data related to Customer and/or its Representatives for the purposes of the conclusion and performance of the Agreement between LucidLink and the Customer under the Terms of Service (e.g. processing of information for creation of Customer account, for invoicing purposes, etc.); (ii) for performance of legal obligations of LucidLink (e.g. for tax and accounting purposes; for reporting purposes prescribed by law, etc.) or (iii) for protecting LucidLink’s legitimate interest (e.g. for handling complaints; exercising/defending against legal claims, etc.). Such processing activities as described in item (i) – (iii) above are subject to the LucidLink’s Privacy Policy available at [https://www.lucidlink.com/privacy], an integral part of the Terms of Service.
This DPA DOES NOT APPLY to the relations between Customer and third-party service providers whose services are used in relation to the Services (e.g. Cloudian Storage, Google Cloud or other S3 supported cloud service provider or Azure Blob Storage). LucidLink is not a party to the contractual relations between Customer and such third parties and is not in any way responsible for the reliable and quality performance of such services. Customer is encouraged to read carefully the terms and conditions and all the other relevant documents of any such third-party service provider before entering into contractual relations with it.
This DPA is an integral part of the Agreement between the Customer and LucidLink.
1. Definitions
Upon application and interpretation of the present DPA the terms below will have the following meaning:
1.1. The “Agreement” is the agreement concluded between Customer and LucidLink under the LucidLink Terms of Service along with all the Order Forms from Customer that are incorporated into and form a part of the Agreement.
1.2. “The Regulation”/ “GDPR” is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
1.3. “Applicable Rules/ Applicable Rules for Personal Data Protection”, within the meaning of the present DPA are all the applicable legislative acts in effect (regulations, laws, ordinances, etc., incl. GDPR), codes of conduct, etc. that regulate the performed processing of Personal Data.
1.4. “Personal Data” are personal data within the meaning of Art. 4 (1) of the Regulation which might be processed by LucidLink on behalf of Customer in connection with the provision of the Service.
1.5. End-Device means computer, laptop, tablet, smartphone or similar device on which LucidLink’s software is installed for the usage of the Service;
1.6. All terms and definitions used in the present DPA which are not defined herein shall have the meaning used in LucidLink Terms of Service (e.g. “Services”, “Services with Storage”, “Customer Data”, etc.), and if a definition is not provided in the Terms of Service, they shall have the meaning provided in the Regulation (e.g. “Controller”, “Processor”, “Process”/ “Processing”, “Data Subject”, etc.), or if not defined in Regulation – the meaning pursuant to the other relevant Applicable Rules.
2. Subject and term
2.1. The purpose of the present DPA is to regulate the relations between Customer and LucidLink in relation to the processing of Personal Data (to the extent such processing might take place) by LucidLink on behalf of Customer for the purposes of provision of the Services.
2.2. By entering into the Agreement and this DPA, Customer acknowledges that (i) Customer is the sole Controller of Personal Data or (ii) has been dully instructed by and obtained authorization from the relevant Controller(s) to act and assign on behalf of the relevant Controller(s) the processing of Personal Data to LucidLink as set out in this DPA.
Customer undertakes to act as a single point of contact for LucidLink in relation to the processing of Personal Data subject to this DPA. As other Controller(s) may have certain direct rights against LucidLink, Customer undertakes to exercise all such rights on their behalf and to obtain all the necessary permissions from any such other Controller(s). LucidLink is released from obligation to inform or notify another Controller(s) when LucidLink has provided such information or notification to Customer.
2.3. The Services consist of a distributed file system – а technology solution that utilizes Customer’s access to Customer Data stored on a cloud space used by Customer, maintained by a given third-party service provider. For the purposes of provision of the Service, LucidLink processes metadata – information regarding the file system layout as hierarchy of the files and directories, names of filespaces, files and directories created/stored by Customer in the cloud space and information who have access to files/directories as set out by the Customer within their work environment. This information may contain Personal Data and in such a case, the provision of the Services requires from LucidLink to process these data. LucidLink shall process these data solely on behalf of Customer and in strict compliance with the Regulation and this DPA and Customer’s Instructions (Article 3 of this DPA). The user’s names and other users’ identifiers as well as activity/ audit logs are stored on Customer’s End-Devices and LucidLink does not have access to such details.
2.4. Customer is solely responsible to check whether the measures for protection of the Personal Data specified in this DPA are appropriate to the risk of processing the Personal Data contained in its Customer Data. In cases where those measures or other terms and provisions relevant to the processing of the Personal Data within the Services do not comply or are incompatible with the requirement applicable to the processing and protection of the Customer Data (and/or the Personal Data contained in the Customer Data) or to the activities of the Customer, the Customer shall not use the Services or respectively shall restrict the use of the Services solely to Customer Data for which the applied measures are sufficient to ensure the compliance with the applicable rules for their processing.
2.5. The Services with Storage consist of the provision of a cloud storage space along with the Services under item 2.3 above. For the provision of Services with Storage LucidLink uses a third-party cloud service providers (Partner Storage Providers) – Wasabi Technologies, Inc. or a respective affiliate of Wasabi Technologies Inc. (https://wasabi.com/; “Wasabi) or International Business Machines Corporation or a respective affiliate of International Business Machines Corporation (ibm.com; “IBM”). When subscribing for Services with Storage and by accepting LucidLink’s Terms of Service and this DPA:
2.5.1. Customer agrees and acknowledges that the parameters of these Services are also subject to the Partner Storage Provider’s terms and conditions, data processing agreements and any other relevant legal document that is determined by the respective Partner Storage Provider to regulate the relations with the Partner Storage Provider with regard to the provision of storage services on Partner Storage Provider’s cloud space (for Wasabi available at https://wasabi.com/legal/; for IBM available at cloud.ibm.com/docs; jointly “Partner Legal Documentation”/ “PLD”);
2.5.2. Customer explicitly accepts the terms of Partner Legal Documentation and undertakes to comply therewith;
2.5.3. Customer is solely responsible to check whether the security measures implemented by the Partner Storage Provider for their cloud space as described in PLD ensure a level of security appropriate to the risk of processing the Personal Data contained in Customer Data. In cases where the security measures or other terms and provisions relevant to the storage and processing of Personal Data within the Partner Storage Provider cloud space do not comply or are incompatible with the requirement applicable to the processing, storage and protection of the Customer Data (and/or the Personal Data contained in the Customer Data) or to the activities of the Customer, the Customer shall not use the Services with Storage or respectively shall restrict the use of the Services with Storage solely to Customer Data for which the applied measures are sufficient to ensure the compliance with the applicable rules for their processing.
2.5.4. Customer agrees and acknowledges that the Services with Storage are provided “AS IS” and LucidLink cannot influence Partner Storage Provider’s’ decisions in terms of how the cloud storage services will be provided.
2.6 Where Personal Data must be processed in compliance with GDPR, Customer undertakes when setting up its Services preferences to choose/ to indicate as storage region a region that is located in the EU, so that the territory of processing for the Services is located within the EU.
2.7. The present DPA enters into force with the conclusion of the Agreement and applies for the entire duration of the Agreement.
3. Customer’s Instructions
3.1. Documented instructions. The instructions for processing of Personal Data are the instructions contained in this DPA, as well as instructions made through the functionality of the Services (“Documented Instructions/Instructions”). Customer agrees that it will submit Customer’s Instructions in the manner provided for in the functionality of the Services and that its instructions will be in accordance with the Applicable Rules. LucidLink will process Personal Data only in accordance with the Customer’s Documented Instructions.
3.2. Additional instructions. Additional instructions by Customer regarding the processing of the Personal Data that are not stipulated in this DPA or not provided as options in the software used for the provision of the Services require prior written agreement between LucidLink and Customer, including agreement on any additional fees payable by Customer to LucidLink for carrying out such instructions. Such additional instructions shall be documented in writing by the means of Exhibits to the present DPA, bilaterally signed between the Parties.
4. Nature, scope and purposes of processing
4.1. In relation to the Services provision, LucidLink shall process Personal Data as far as such are contained in the information processed by LucidLink as described in Art. 2.1.) on behalf of Customer for the following purposes:
4.1.1. Provision of the Services in accordance with the Agreement and this DPA which includes:
Utilizing Customer’s access and connection to directories created and files stored on the Customer’s cloud space;
Facilitating the communication between Customer’s End-Devices and the cloud space;
Enabling Customer to create one or more users to use the Services within the Customer account;
Enabling Customer to set up and manage access permissions of users to files/directories within Customer’s work environment;
Technical support and resolution/fixing of and response to issues, bugs, malfunctioning of the Services or similar reported by Customer.
4.1.2. Provision of the Services with Storage in accordance with the Agreement and this DPA which includes providing Customer with the opportunity to use storage space in the cloud space of Partner Storage Providers for storage of Customer Data;
4.2. The Parties acknowledge and agree that when processing Personal Data (to the extent applicable) for the purposes specified in Art. 4.1.1 and 4.1.2. above LucidLink processes these Personal Data as Data Processor on behalf of Customer. LucidLink shall not process these Personal Data for any purposes other than the ones specified in this DPA. Customer shall or Customer declares and warrants that the relevant Controller(s) under Art. 2.2 of this DPA (i) has/have sole responsibility for the accuracy, quality and reliability of the Personal Data and the lawfulness of their processing; and (ii) ensure(s) that data processing instructions given to LucidLink, including instruction given by Customer by using the functionalities of the Services, are in accordance with the Applicable Rules.
5. Processing activities
5.1. For the provision of the Services and for the purposes under Art. 4.1.1 and 4.1.2, the following data processing activities will be carried out:
Activity 1: Processing of Personal Data for the provision of the Services related to utilization of access to Customer Data, namely providing assistance to Customer with regard to ensuring access to the structure of the filespaces, directories created and files stored on the Customer’s cloud space;
Categories of data subjects: the data subjects are those chosen by Customer and may be Customer’s customers, employees, suppliers, end-users, etc. and any other individuals whose data are somehow included by the Customer in the types of data specified below.
Types of Personal Data which may be processed: names of directories created and files stored on the Customer’s cloud space or on the Services with Storage space, to the extent such may contain Personal Data (e.g. names or other identifiers chosen by the Customer)
Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to delete or modify the names of the directories created and files stored on the Customer’s cloud space or on the Services with Storage space, thus the terms for which any Personal Data contained therein in the context of using the Services are determined by Customer at its sole discretion and control.
Activity 2: Processing of Personal Data for the provision of the Services related to setting up and managing user access permissions to Customer Data:
Categories of data subjects: end-users who have been provided with access to the Services as per the permissions of the Customer.
Types of Client’s Personal Data which may be processed: access permissions of users within Customer’s account to directories created and files stored on the Customer’s cloud space, to the extent such may contain Personal Data and user’s credentials for access to the Services;
Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to delete or modify the level of user access permissions to the directories created and files stored on the Customer’s cloud space, thus the terms for which any Personal Data contained therein in the context of using the Services are determined by Customer at its sole discretion and control.
Activity 3: Processing of Personal Data for the provision of the Services with Storage, i.e. providing Customer with the opportunity to store Customer Data on the cloud storage space:
Categories of data subjects: the data subjects are those chosen by Customer and may be Customer’s customers, employees, suppliers, end-users or any other type of individuals whose data are included by the Customer in the Customer Data that are stored on the cloud space provided within the Services with Storage;
Types of Client’s Personal Data which may be processed: any type of Personal Data chosen by Customer to be stored on cloud space provided within the Services with Storage;
Term: for the duration of the Agreement. For avoidance of any doubt Customer is entitled at any time to extract, delete or modify the Customer Data provided for storage, thus the terms for which any Personal Data contained therein in the context of using the Services with Storage are determined by Customer at its sole discretion and control.
5.2. Whether Customer Data contains Personal Data or not is entirely up to the Customer’s discretion. If Customer Data contains Personal Data, the Categories of Data Subjects and the Types of Personal Data to be processed are entirely up to Customer’s discretion and may include any information that the Customer decides (i) to include in the names of directories created and files stored on the Customer’s cloud space to which the Customer wants to establish access through its End-Device by using the Services (ii) to store on the cloud space provided within the Services with Storage.
5.3. LucidLink does not in any way take decisions regarding the categories of Data Subjects and the types of Personal Data that are to be processed, nor is entitled to influence in any way such decisions. LucidLink does not in any way directly or indirectly control the Customer Data that has been stored or otherwise processed via its software installed on Customer’s End-Device with regard to the use of the Services incl. the Services with Storage.
5.4. If Customer Data contains Personal Data, it is Customer’s sole responsibility to decide whether the measures for ensuring security and protection of Customer Data applied by LucidLink when providing the Services as described in this DPA (and the measures applied by the Partner Storage Providers as described in PLD in case of Services with Storage) are appropriate and adequate to the risks associated to the processing of the respective Personal Data. If at certain point Customer decides that the measures ensured by LucidLink (or the Partner Storage Providers in case of Services with Storage) are not appropriate and adequate in relation to risks associated to the processing of given type(s) of Personal Data, it is Customer’s sole responsibility to cease the usage of the Services (incl. the Services with Storage) with respect to such Personal Data.
6. Technical and organizational measures
6.1. LucidLink guarantees that it takes appropriate technical and organizational measures in compliance with the requirements of the Regulation and the Applicable Rules and undertakes to ensure protection of Data Subjects’ rights. For avoidance of any doubt, LucidLink guarantees that it applies at least the technical and organizational measures for Personal Data protection described in Exhibit No. 1 to the present DPA.
6.2. LucidLink guarantees that the personnel which have access to the Personal Data have passed initial training and will pass regular trainings on Personal Data processing and protection, in compliance with the particular processing activities and the specific risks related to the Personal Data processing. LucidLink guarantees that each person who has access to Personal Data has assumed a confidentiality obligation or is obliged by law to keep confidentiality.
6.3. The Services involve functionalities for strong end-to-end, full system encryption where all the Customer Data are encrypted on the Customer End-Devices, on the Customer’s storage space (including on the storage space when using the Services with Storage under item 2 of the Terms of Service) and remains encrypted in transit and at rest and only Customer is in possession of the encryption keys. It is up to the sole discretion of the Customer whether to use and activate these functionalities or not. In case the Customer uses these functionalities the encryption and decryption of the Customer Data is performed directly by the Customer and takes place on the Customer’s End-Devices and cloud space using the software installed on its End-Devices. LucidLink is not involved in the encryption and decryption processes. By the acceptance of the present DPA Customer is informed therewith and agrees to take the diligent care to preserve its Key Secret and acknowledges that LucidLink shall not be liable for any impossibility of Customer to decrypt and further process and use Customer Data in case of loss of Customer’s Key Secret, incl. for any loss of Personal Data. The Customer is explicitly informed and agrees that LucidLink cannot restore any forgotten or lost Key Secret.
7. Obligations of Customer
As part of this DPA and the Agreement, Customer:
7.1. is responsible for ensuring the existence of a legal basis under the Regulation (to the extent it applies to Customer) for the processing of the Personal Data provided to the Services (incl. the Services with Storage) or agrees and warrants that the relevant Controller(s) under Art. 2.2. of this DPA has/have ensured such;
7.2. undertakes to ensure and bears full responsibility for compliance with the requirements of the Regulation (to the extent it applies to Customer), the Applicable Rules, this DPA and the Terms of Service and PLD (in case of use of the Services with Storage) by its representatives, staff and all other persons to whom Customer may provide access to Customer Data that contains Personal Data via the Services.
8. Processing of Personal Data for the purpose of the Services provision
8.1. LucidLink undertakes:
8.1.1. not to process Personal Data for any purposes other than the ones specified in the present DPA, except when required to do so under applicable law or in the case when it acts as a Data Controller (for the cases where LucidLink acts as Data Controller see LucidLink Privacy Policy);
8.1.2. to refrain from any activities aimed at bypassing the encryption and gaining unauthorized access to Customer Data such as decrypting, extracting, recording, copying, moving Customer Data (or similar activity);
8.2. The access to Customer Data stored on third party cloud spaces in the course of Services provision will be ensured by third party service providers and Customer acknowledges that these third parties will be solely responsible for its security. These activities are outside LucidLink’s control.
8.3. By accepting this DPA and the Agreement Customer declares that it is informed that in cases determined by law, LucidLink may be required to keep and disclose to the competent authorities information it processes on Customer’s behalf. LucidLink undertakes to inform Customer of such orders, except in cases where this is prohibited by law.
8.4. Subcontractors (sub-processors)
8.4.1. Customer agrees that LucidLink may and authorizes LucidLink to use subcontractors in relation to the Services provision, including to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. LucidLink maintains an up-to-date list of subcontractors [https://www.lucidlink.com/sub-processors]. Customer agrees to the use by LucidLink of the subcontractors described in this Art. 8.4. for the purpose of providing the Services.
8.4.2. In the event of a change, Customer will be notified explicitly prior to the change. Customer can object to the inclusion of a new subcontractor within 14 (fourteen) calendar days as of notification under the previous sentence. Customer objections shall be in writing and shall include Customer’s specific reasons for its objections and options to mitigate, if any. If Customer does not object within the said period, the respective subcontractors may be engaged by LucidLink and commence processing. If Customer legitimately objects to the inclusion of subcontractors and LucidLink cannot reasonably accommodate Customer’s objection, LucidLink will notify Customer. In such a case, Customer shall be entitled to terminate the Agreement with a written notice to LucidLink within 14 (fourteen) calendar days as of notification. LucidLink will reimburse a prorated amount of any pre-paid subscription fees for the period after such termination date.
8.4.3. When using subcontractors LucidLink will enter into a written agreement with them and, to the extent that the subcontractor is performing the same data processing services that are being provided by LucidLink under this DPA, LucidLink will impose on the subcontractor the same contractual obligations that LucidLink has under this DPA. In such a case, LucidLink will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause LucidLink to breach any of LucidLink’s obligations under this DPA.
9. Performance of supervisory activities and inspections
9.1. LucidLink undertakes to provide the necessary assistance to carry out audits and verifications by a competent supervisory authority on the Personal Data processing activities (to the extent applicable) it has been assigned with by Customer.
9.2. LucidLink will periodically provide information about available certificates, audits, etc. under the form and in so far as this does not jeopardize the security of the Services. If additional data are required in connection with Personal Data protection obligations, an audit may be required after the signing of a prior agreement with LucidLink specifying the scope, duration and mutually agreed person accredited to conduct audits under the Regulation (Auditor). In carrying out this type of audit, Customer undertakes to pay all costs, fees and expenses for the activities and services performed by both the Auditor and LucidLink. An audit may be performed only in a manner and to a degree that does not prejudice the obligations and rights of other Customers relating to the protection of Personal Data.
9.3. Customer may at any time make enquiries and receive replies from LucidLink related to the processing of Personal Data in pursuance of the Agreement and the present DPA.
10. Notification to Customer
LucidLink undertakes to inform Customer:
10.1. in the case of an inspection undertaken by a data protection supervisory authority in connection with the processing of Personal Data for the purposes of the Services provision;
10.2. if it finds that it is unable to fulfill its obligations under this DPA and/or the Agreement for any reason;
10.3. without undue delay, in case it detects a security breach of the Personal Data processed for the purposes of the Services provision.
11. Cooperation with Customer
11.1. LucidLink undertakes to provide assistance to Customer:
11.1.1. in demonstrating the fulfillment of Customer’s obligations associated with the processing of Personal Data assigned by Customer;
11.1.2. in ensuring compliance with the obligations pursuant to Articles 32 to 36 of Regulation (to the extent it applies to Customer) taking into account the nature of processing and the information available to LucidLink;
11.1.3. in fulfilling the Customer’s obligations to notify the supervisory authority in the event of a personal data breach;
11.1.4. as far as reasonably possible and reasonably expected, through the functionalities of the Services and through appropriate organizational and technical measures in the performance of the Customer’s duties, to respond to the Data Subjects’ requests for exercise their rights granted under the data protection legislation. By using the Services, Customer agrees that the provided functionalities of the Services are enough in the context of the conducted processing activities in order to duly respond to Data Subjects’ requests.
11.2. The Customer acknowledges and agrees that the nature of the processing does not allow LucidLink to identify the Data Subjects. In this respect, upon receipt of a request from a Data Subject in connection with the exercise of rights under the Regulation, LucidLink shall inform the Data Subject that it is necessary to contact directly the relevant Data Controller and that, given the nature of the Services and the encryption mechanisms used as part thereof, LucidLink cannot establish whether or not Data Subject’s Personal Data are processed or not, nor check and determine who the relevant Data Controller is.
12. Transborder data processing
12.1. As of 27.09.2021, by agreeing to this DPA, Customer is entering into the EU Standard Contractual Clauses (EU SCC) with LucidLink as follows:
(i) when Customer is acting as a Controller, the EU SCC Controller-to-Processor Clauses (Exhibit No. 2a) will apply, or
(ii) when Customer is acting as a Processor, the EU SCC Processor-to-Processor Clauses (Exhibit No. 2b) will apply. Taking into account the nature of the processing, Customer agrees that LucidLink is not in a position to know the identity of relevant Controller(s) under Art. 2.2. of this DPA because LucidLink has no direct relationship with the relevant Controller(s). In that respect, Customer will fulfill LucidLink’s obligations to the relevant Controller(s) under the EU SCC Processor-to-Processor Clauses.
The above rules apply only to a Customer that is established in the EU or has explicitly indicated that the processing of the Customer Data needs to be performed in compliance with the Regulation. Customer agrees and, if applicable, procures the agreement of the other relevant Controller(s) that the EU SCC (Exhibits No. 2a and 2b), including any claims arising thereof, are subject to the terms set forth in the Agreement and this DPA, including the exclusions of liability. In case of conflict, the EU SCC (Exhibits No. 2a and 2b) shall prevail.
12.2. For Customers who have accepted this DPA and the Agreement before 27.09.2021, Art. 12.1. and the EU SCC Exhibits No. 2a and 2b shall apply as of 01.01.2022. Until then the following rules shall remain applicable:
12.2.1. By agreeing to this DPA, Customer is entering into the EU Standard Contractual Clauses (EU SCC) (Exhibit No. 2 thereto) with LucidLink:
(i) on its own behalf, or
(ii) on behalf of the relevant Controller(s) under Art. 2.2. of this DPA (where applicable). By doing so, Customer declares that it has the relevant authorization to enter into these EU SCC on behalf of the relevant Controller(s). In such a case, the relevant Controller(s) are to be considered additional data exporter(s) of the EU SCC concluded between Customer and LucidLink.
The above rules only for a Customer that is established in the EU or has explicitly indicated that the processing of the Customer Data needs to be performed in compliance with the Regulation. Customer agrees and, if applicable, procures the agreement of the other relevant Controller(s) that the EU SCC, including any claims arising thereof, are subject to the terms set forth in the Agreement and this DPA, including the exclusions of liability. In case of conflict, the EU SCC shall prevail.
12.2.2. In the event of change of the controllership towards the Personal Data which renders Customer no longer authorized to enter into the EU SCC on behalf of the new relevant Controller(s), Customer undertakes to immediately (but not later than 3 (three) calendar days as of the change of the controllership) to notify LucidLink. In such a case, Customer is obliged to make commercially reasonable efforts to obtain such authorization and if no authorization is obtained within 14 (fourteen) calendar days as of the day of notification, LucidLink is entitled to terminate unilaterally the Agreement.
13. Consequences of termination of the Agreement or of the processing activities
In the event of termination of the Agreement or the processing of Personal Data by LucidLink for the purposes of performance of the Agreement and the present DPA, Customer can export or delete the Customer Data by the means of the functionalities provided by the Service.
14. Liability
14.1. LucidLink shall be liable for damages resulting from the processing of Personal Data only if it has not fulfilled the obligations under the Applicable Rules specifically addressed to a data processor or when LucidLink acted outside the lawful Customer Instructions or in contradiction with them. When LucidLink has paid the full compensation for damages caused, LucidLink is entitled to request from Customer involved in the same processing operation to recover part of the compensation paid corresponding to their portion of responsibility for the damages caused.
14.2. If Customer violates any of its obligations and acknowledgments under this DPA, Customer undertakes to indemnify and hold harmless LucidLink, its affiliates and subcontractors from all liabilities, claims, expenses and similar from a third party claim and/or administrative/pecuniary sanction arising of or relating to the violation of the Customer’s obligations or acknowledgments under of the present DPA.
15. Additional provisions
15.1. If any provision of this DPA is held to be void or unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This shall have no effect on the other provisions hereof or of the Agreement. The invalid clause will be replaced by the mandatory rules of the law or by the established practice.
15.2. This DPA shall be governed by the law applicable to the Agreement.
Exhibits:
Exhibit No. 1 “Minimum technical and organizational measures undertaken by LucidLink”;
Exhibit No. 2a “Standard contractual clauses (Transfers controller to processor)”;
Exhibit No. 2b “Standard contractual clauses (Transfers processor to processor)”.
Exhibit No. 1
TECHNICAL AND ORGANIZATIONAL MEASURES UNDERTAKEN BY LUCIDLINK
LucidLink will implement and apply various technical and organizational measures to protect Customer Data and the Personal Data which may be contained in the Customer Data as described below:
Physical protection. LucidLink will apply and respectively will ensure that all of its subcontractors which are involved in processing of any Customer Data (e.g. datacenters) will apply at least the following technical and organizational measures for physical protection of the Customer Data, including:
physical access control to all premises where Customer Data may be processed;
up-to-date list of the people authorized to access the premises;
determining the regime of visits;
failover power supply and air conditioning;
means for physical protection: equipment of the areas with controlled access; security system; firefighting devices; fire detection and extinguishing.
Personnel protection. LucidLink will apply organizational measures regarding persons who process Customer Data, including (when applicable):
knowledge of the legislation relating to the Protection of Personal Data;
knowledge of the internal policies for the Protection of Personal Data;
knowledge of the threats to the processed Personal Data;
obligations for confidentiality and non-disclosure of Personal Data;
training;
training the employees to respond to events that threaten the security of Customer Data;
defining roles and responsibilities of the personnel.
Information systems and networks. LucidLink will apply technical and organizational measures for protection of the information systems and networks, including:
data protection guidelines and policies;
regular review and update of the implemented data protection guidelines and policies;
inventory of all information systems and assets related to the provision of the Services and monitoring of their status;
periodical evaluation of the information systems used for the provision of the Services with regards to their security, integrity and availability;
defining roles and access levels of the personnel within the systems;
measures for secure identification and authentication, incl. passwords management and update;
session controls;
monitoring of the systems and audit logs;
software and hardware solutions for protection and security monitoring and auditing of the Services (Web Application Firewalls, Network Firewalls, etc.), as well as end-point solutions such as anti-virus and anti-malware software, automated software updates, etc.;
documented architecture of the infrastructure;
regular reviews of the architecture with respect to security and compliance with the best practices related to segmentation and isolation;
in case of use of wireless networks, they will be encrypted and they will use secure authentication. These networks will not have direct access to the Services and LucidLink will not use wireless networks for the provision of the Services;
Customer Data are stored logically separated from other Customers Customer Data;
minimal access rights for the personnel only as far as necessary for their job role or specific assignment, requiring access, for the duration of the assignment (e.g. “need to know” principle);
sanitization of physical media intended for reuse or if no reuse is planned, destruction of the physical media by following best practices.
backup systems to backup Customer Data and at least one copy will be stored separately from the production system;
regular backup restoration testing;
planned updates of the software, applications, systems and network devices and if necessary partial security patches after evaluation of their appropriateness and the risk involved.
Security Incidents
4.1. LucidLink will follow documented security incident response plan in compliance with the notification requirements of the Regulation.
4.2. LucidLink will investigate all potential security incidents and apply the response plan. Should the Customer suspect security vulnerability or incident with respect to its accounts, it should immediately notify LucidLink.
4.3. LucidLink will notify the Customer without undue delay if it identifies a security incident related to the Customer Data and will provide to the Customer, as far as reasonably possible, with information about the incident and the taken remediation activities.
Cryptographic protection. LucidLink will apply technical and organizational measures for cryptographic protection of Customer Data, including (:
standard cryptographic capabilities of the operating systems;
standard cryptographic capabilities of the database management systems;
standard cryptographic capabilities of communications equipment;
systems for distribution and management of cryptographic keys;
systems for electronic signature.
5.1. LucidLink provides the Services via zero-knowledge encryption model, where both cloud service providers and LucidLink know nothing about the Customer Data stored and transmitted on Customer’s infrastructure. To achieve this, LucidLink uses a strong end-to-end, full system encryption where all the Customer Data is encrypted on the Customer’s End-Device and remains encrypted in transit and at rest and only the Customer is in possession of the encryption keys. This prevents LucidLink and the cloud service provider from seeing the Customer Data.
5.2. The access of each individual user to a certain set of folders/files granted by Customer is established by using encryption in order to maintain isolation from other users and partitions access to the respective filespace. This way each user can only decrypt the respective parts from the shared folders/files he is given access to but cannot see anything above the filesystem.
Exhibit No. 2
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
(For Customers that have accepted the DPA and the Agreement before 27.09.2021, these Clauses remain valid until 01.01.2022)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The entity or individual identified as “Customer” in the DPA (the “data exporter”)
and
LucidLink Corp., a corporation incorporated under the laws of the United States of America, file number 5921484, having its official seat in the USA, State of Delaware and its principal place of business at 3500 South DuPont Highway, City of Dover, County of Kent, 19901 (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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 organizational 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, unauthorized 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 [1]
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 organizational 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 unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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. 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.
Appendix 1
to the Standard Contractual Clauses
Data exporter
The data exporter is the entity or individual identified as “Customer” in the DPA.
Data importer
The data importer is LucidLink Corp., a provider of a software as a service that inter alia consists of distributed file system enabling Customer to establish facilitated access to the Customer Data stored on a third-party cloud storage space or on cloud space provided as the Service with Storage (as determined in the Terms of Service).
Data subjects
The categories of data subjects are defined in Article 5.1 of the DPA.
Categories of data
The categories of personal data are defined in Article 5.1 of the DPA.
Processing operations
The processing operations are defined in Article 5.1 of the DPA.
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 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 Exhibit No. 1 to the DPA.
[1] 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.
Exhibit No. 2а
STANDARD CONTRACTUAL CLAUSES
(Transfers controller to processor)
(Valid as of 27.09.2021; for Customers that have accepted the DPA and the Agreement before 27.09.2021, valid as of 01.01.2022)
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
Not used
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (2) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 14 (fourteen) calendar days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (3) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (4);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Bulgaria.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the Republic of Bulgaria.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
(1) Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
(2) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
(3) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
(4) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: The data exporter is the entity or individual identified as “Customer” in the DPA.
Address: The address for Customer associated with its LucidLink’s account or as otherwise specified the Agreement (incl. in the respective Order Forms).
Contact person’s name, position and contact details: The contact details for Customer associated with its LucidLink’s account or as otherwise specified the Agreement (incl. in the respective Order Forms).
Activities relevant to the data transferred under these Clauses: The activities specified in Article 5 of the DPA.
Signature and date: By using the Services of LucidLink to transfer Customer Data to Third Countries, the data exporter will be deemed to have signed this Annex I.
Role (controller/processor): Controller
Data importer(s):
Name: LucidLink Corp. (LucidLink), a provider of a software as a service that inter alia consists of distributed file system enabling Customer to establish facilitated access to the Customer Data stored on a third-party cloud storage space or on cloud space provided as the Services with Storage (as determined in the Agreement).
Address: The address for LucidLink specified in the Agreement.
Contact person’s name, position and contact details: The contact details for LucidLink specified in the Agreement.
Activities relevant to the data transferred under these Clauses: The activities specified in Article 5 of the DPA.
Signature and date: By transferring Customer Data to Third Countries on Customer’s instructions, the data importer will be deemed to have signed this Annex I.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The categories of data subjects are defined in Article 5.1 of the DPA.
Categories of personal data transferred
The categories of personal data are defined in Article 5.1 of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The data exporter might include sensitive personal data in the personal data described in Article 5.1 of the DPA.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal data is transferred in accordance with Customer’s instructions as described in Article 3 of the DPA.
Nature of the processing
The nature of the processing is defined in Article 4 and Article 5 of the DPA.
Purpose(s) of the data transfer and further processing
The purposes of the processing are defined in Article 4 and Article 5 of the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The terms of the processing for the different processing activities are defined in Article 5.1 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The subject matter, nature and duration of the processing are described in Article 4 and Article 5 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organizational measures as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in the DPA.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
The technical and organizational measures that the data importer will impose on sub-processors are described in the DPA.
Exhibit No. 2b
STANDARD CONTRACTUAL CLAUSES
(Transfers processor to processor)
(Valid as of 27.09.2021; for Customers that have accepted the DPA and the Agreement before 27.09.2021, valid as of 01.01.2022)
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
Not used
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.
(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.
(c) The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.
(d) The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter (2).
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to rectify or erase the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards set out in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (3) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the controller.
(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.
(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.
(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.
(f) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(g) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least 14 (fourteen) calendar days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the controller), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (4) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.
(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (5);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). The data exporter shall forward the notification to the controller.
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation, if appropriate in consultation with the controller. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the controller or the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
The data exporter shall forward the notification to the controller.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). The data exporter shall forward the information to the controller.
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. The data exporter shall make the assessment available to the controller.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority and the controller of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Republic of Bulgaria.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State
(b) The Parties agree that those shall be the courts of the Republic of Bulgaria.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
(1) Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
(2) See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.
(3) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purposes of these Clauses.
(4) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
(5) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: The data exporter is the entity or individual identified as “Customer” in the DPA.
Address: The address for Customer associated with its LucidLink’s account or as otherwise specified the Agreement (incl. in the respective Order Forms).
Contact person’s name, position and contact details: The contact details for Customer associated with its LucidLink’s account or as otherwise specified the Agreement (incl. in the respective Order Forms).
Activities relevant to the data transferred under these Clauses: The activities specified in Article 5 of the DPA.
Signature and date: By using the Services of LucidLink to transfer Customer Data to Third Countries, the data exporter will be deemed to have signed this Annex I.
Role (controller/processor): Processor
Data importer(s):
Name: LucidLink Corp. (LucidLink), a provider of a software as a service that inter alia consists of distributed file system enabling Customer to establish facilitated access to the Customer Data stored on a third-party cloud storage space or on cloud space provided as the Services with Storage (as determined in the Agreement).
Address: The address for LucidLink specified in the Agreement.
Contact person’s name, position and contact details: The contact details for LucidLink specified in the Agreement.
Activities relevant to the data transferred under these Clauses: The activities specified in Article 5 of the DPA.
Signature and date: By transferring Customer Data to Third Countries on Customer’s instructions, the data importer will be deemed to have signed this Annex I.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The categories of data subjects are defined in Article 5.1 of the DPA.
Categories of personal data transferred
Тhe categories of personal data are defined in Article 5.1 of the DPA.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The data exporter might include sensitive personal data in the personal data described in Article 5.1 of the DPA.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal data is transferred in accordance with Customer’s instructions as described in Article 3 of the DPA.
Nature of the processing
The nature of the processing is defined in Article 4 and Article 5 of the DPA.
Purpose(s) of the data transfer and further processing
The purposes of the processing are defined in Article 4 and Article 5 of the DPA.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The terms of the processing for the different processing activities are defined in Article 5.1 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The subject matter, nature and duration of the processing are described in Article 4 and Article 5 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organizational measures as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in the DPA.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
The technical and organizational measures that the data importer will impose on sub-processors are described in the DPA.