DATA PROCESSING ADDENDUM
Last Updated: September 25, 2020.
Previous versions of this Data Processing Addendum (“DPA”) are available here.
This DPA applies when it is referred to in Service Terms that apply to an Order Form executed by Customer and Athennian. The Service Terms are available in the Legal Terms Portal. Terms having a meaning defined in the Service Terms will have the same meaning when used in this DPA. This DPA is subject to the Service Terms, including the provisions of the Service Terms that limit the liability of Athennian, it affiliates, and other persons.
Athennian may amend this DPA from time to time, with or without prior notice. The amended DPA will become effective when posted in the Legal Terms Portal.
1. APPLICATION OF THIS DPA
If any data submitted by or for Customer to the Athennian Services includes personal data, and if some or all of that personal data is subject to the GDPR or the CCPA, then this DPA governs the processing of the personal data that is subject to the GDPR or the CCPA. Certain terms used in this DPA have the meanings given to them in the “Definitions” section of this DPA.
2. DEFINITIONS
“Agreement” has the meaning specified in the Service Terms that refer to this DPA.
“Applicable Laws” has the meaning set forth in the Agreement and, for the purpose of this DPA, includes Data Protection Laws.
“Athennian Security Program” means the Athennian Security Program applicable to the Services purchased by Customer, as updated from time to time, and accessible via Athennian’s Legal Portal, or as otherwise made reasonably available by Athennian.
“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and its provinces and territories, the United States and its states, the European Union, the European Economic Area (“EEA”) and their member states, Switzerland and the United Kingdom, if and to the extent applicable to the Processing of Personal Data under the Agreement. For greater certainty, Data Protection Laws includes the GDPR and the CCPA, to the extent applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable natural person to whom Personal Data relates.
“GDPR” means the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any information relating to an identified or identifiable natural person, where such information is part of the Customer Data Processed under the Agreement.
“Processing” means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the Standard Contractual Clauses (Processor) attached as an annex to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC. The Standard Contractual Clauses are set out in Attachment 1 to this DPA.
“Sub-processor” means any Processor engaged by Athennian.
3. PROCESSING OF PERSONAL DATA
3.1 Roles of the Parties. The parties agree that, with regard to the Processing of Personal Data, Customer is the Controller and Athennian is the Processor, and that Athennian may engage Sub-processors subject to the requirements in the section titled “Sub-processors”.
3.2 Customer’s Processing of Personal Data. Customer will, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws, including any applicable requirement to provide notice to Data Subjects of the use of Athennian as a Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with all Data Protection Laws. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Personal Data and for the means by which Customer acquires Personal Data, and Customer shall be responsible for establishing the legal basis for Processing under all Data Protection Laws. Customer represents and warrants to Athenian that (a) Customer has all rights, consents, permissions and legal authority as may be necessary to provide the Personal Data to Athennian and to authorize Athennian to Process the Personal Data to provide the Services, and (b) Customer’s use of the Services will not violate the rights of any Data Subject under Data Protection Laws.
3.3 Athennian’s Processing of Personal Data. The parties agree that this DPA, the Agreement, and the provision by Customer of instructions via features, tools and APIs made available by Athennian for the Services constitute Customer’s documented instructions regarding Athennian’s Processing of Personal Data (“Documented Instructions”), including with respect to transfers of personal data to a third country or an international organization. Athennian will Process Personal Data only in accordance with Documented Instructions, unless required to do so under Applicable Laws. Customer agrees that the Documented Instructions are Customer’s complete and final instructions to Athennian in relation to Processing of Personal Data. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Athennian and Customer, including agreement on any additional fees payable by Customer to Athennian for carrying out such instructions. Customer will ensure that the Documented Instructions comply with all Applicable Laws, and that the Processing of Personal Data in accordance with the Documented Instructions will not cause Athennian to be in breach of any Applicable Laws.
3.4 Details of the Processing.
(i) Subject matter. The subject matter of the Processing under this DPA is Personal Data provided by Customer to Athennian in connection with the Services.
(ii) Duration. The duration of the Processing under this DPA is the duration of the subscription term for the Services, as provided in the Agreement.
(iii) Nature and purpose. The nature and purpose of the Processing under this DPA is the provision of the Services ordered by Customer under the Agreement, as more particularly described in the Documentation, and which are generally SaaS solutions for legal entity management.
(iv) Type of Personal Data. The type of Personal Data that will be Processed under this DPA is Personal Data provided by Customer to the Services, as more particularly described in the Documentation, including but not limited to name, title, position, personal address, business address, citizenship, relationship to managed legal entity, role within managed legal entity, contact information, and identification.
(v) Categories of Data Subjects. The categories of Data Subjects whose data will be Processed under this DPA may include (i) shareholders, partners, limited partners, directors, officers, employees and other individuals connected with corporations and other legal entities, the records of which are managed by Customer using the Services, and (ii) Customer’s employees and end-users.
3.5 Use and Disclosure of Personal Data. Athennian will only use Personal Data to provide the Services to Customer, except with the prior written consent of Customer or as otherwise expressly permitted under the Agreement or this DPA, or unless otherwise required under Applicable Laws. Athennian will not disclose Personal Data outside of Athennian or its Affiliates except (a) as Customer directs or as required to provide the Services, (b) to Customer’s third party service providers as directed by Customer, (c) to Sub-processors as described in the section titled “Sub-processors”, (d) as otherwise described in the Agreement or this DPA, or (e) as required by Applicable Laws.
3.6 Disclosure of Personal Data under Applicable Laws. If Athennian is required to disclose Personal Data by Applicable Laws to which Athennian is subject, then Athennian will promptly notify Customer unless prohibited by law. On receipt of any other third-party request for Personal Data, Athennian will promptly notify Customer unless prohibited by law. Athennian will reject the request unless required by law to comply. If the request is valid, Athennian will attempt to redirect the third party to request the Personal Data directly from Customer.
3.7 Storage and Transfer of Personal Data. For the purposes of this section, “Region” means Canada and the United States, unless a different region is specified in the Order Form. Except as described elsewhere in this DPA or the Agreement, Personal Data that Athennian processes on Customer’s behalf may be transferred to, and stored and Processed in, the Region or any other location where Athennian or its Sub-processors operate. All transfers of Personal Data out of the European Union, European Economic Area, and Switzerland by the Services shall be governed by the terms of the section titled “GDPR Specific Provisions”. All Personal Data that is Processed directly by Athennian will be stored at rest in the Region and Processed directly by Athennian within the Region, except as provided below. Sub-processors may store or Process Customer Data outside the Region. Athennian may transfer Personal Data from the Region, with the consent of Customer, or as necessary to comply with Applicable Laws or a binding order of a Governmental Authority (such as a subpoena or court order). If Customer provides Personal Data as part of a request for Support Services, Athennian may Process that Personal Data in the locations from which Athennian provides those Support Services. To investigate fraud, abuse or violations of the Agreement, Athennian may Process Personal Data where Athennian maintains its support and investigation personnel. Athennian does not control or limit the locations from which Customer or Customer’s end-users may access Personal Data or to which they may move Personal Data (except as otherwise provided under “Export Compliance” in the Agreement). Customer may interconnect the Services with certain other services provided by third parties. Athennian does not control or limit the locations from such third parties may access Personal Data or to which they may move Personal Data (except as otherwise provided under “Export Compliance” in the Agreement).
4. RIGHTS OF DATA SUBJECTS
4.1 Data Subject Request. Athennian will, to the extent legally permitted, promptly notify Customer if Athennian receives a request from a Data Subject (“Data Subject Request”) to exercise any right of the Data Subject under Data Protection Laws, including any right of access, right to rectification, restriction of Processing, erasure (right to be forgotten), data portability, objection to the Processing, or a right not to be subject to automated individual decision making. Taking into account the nature of the Processing, Athennian will assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Athennian will on Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Athennian is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. Customer will pay for assistance provided by Athennian at the Consulting Services Rates.
5. ATHENNIAN PERSONNEL
5.1 Confidentiality. Athennian will ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities, and have executed written confidentiality agreements.
5.2 Limitation of Access. Athennian will ensure that only those Athennian personnel performing Services in accordance with the Agreement have access to Personal Data.
6. SUB-PROCESSORS
6.1 Appointment of Sub-processors. Customer agrees that Athennian may engage third-party Sub-processors in connection with the provision of the Services.
6.2 Agreements with Sub-processors. Athennian will enter into a written agreement with each Sub-processor (a) permitting the Sub-processor to access and use Personal Data only to deliver the services Athennian has retained the Sub-processor to provide and for no other purpose, and (b) requiring the Sub-processor to provide at least the level of data protection required of Athennian under this DPA.
6.3 List of Current Sub-processors and Notification of New Sub-processors. A list of the Sub-processors that are currently engaged by Athennian to carry out Processing activities on Personal Data on behalf of Customer is available on the Legal Portal. The Legal Portal also provides a mechanism by which Customer can subscribe to receive notifications of new Sub-processors for the Services. If Customer subscribes, Athennian will provide notification of each new Sub-processor at least 14 days before authorizing the new Sub-processor to Process Personal Data in connection with the provision of the applicable Services.
6.4 Objection Right for New Sub-processors. Customer may object to Athennian’s use of a new Sub-processor where there are reasonable grounds to believe that the new Sub-processor will be unable to comply with the terms of this DPA or the Agreement. If Customer objects to Athennian’s use of a new Sub-processor, Customer will notify Athennian promptly in writing within ten days after notification regarding such Sub-processor (as provided above). Customer’s failure to object in writing within such time period will constitute approval to use the new Sub-processor. Customer acknowledges that Athennian’s inability to use a particular new Sub-processor may result in delay in performing the Services, inability to perform the Services, or increased fees. Athennian will notify Customer in writing of any change to Services or fees that would result from Athennian’s inability to use a new Sub-processor to which Customer has objected. Customer may either execute a written amendment to the Agreement implementing such change or elect to terminate the Agreement by notice to Athennian. If Customer elects to terminate the Agreement, then Customer will pay to Athennian a termination fee equal to the total of the minimum fees payable for the Services for the remainder of the subscription term applicable to the Services. Such termination will not constitute termination for breach of the Agreement. Athennian will have a right to terminate the Agreement if Customer unreasonably objects to a Sub-processor, or does not agree to a written amendment to the Agreement implementing changes in fees or Services resulting from the inability to use the Sub-processor at issue.
6.5 Liability. Athennian shall be liable for the acts and omissions of its Sub-processors to the same extent that Athennian would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
7. SECURITY
7.1 Athennian Security Measures. Athennian will implement and maintain appropriate technical and organizational measures to protect Personal Data, including measures to protect Personal Data from unauthorized access, use, modification, encryption, deletion, loss or disclosure. Those measures will be described in the Athennian Security Program. Athennian will make that Athennian Security Program available to Customer, along with other information reasonably requested by Customer regarding Athennian security practices and policies.
7.2 Customer Responsibilities. Customer is solely responsible for making an independent determination as to whether Athennian’s technical and organizational measures for the Services meet Customer’s requirements, including any of its security obligations under Applicable Laws. Customer agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing, as well as the risks to individuals) Athennian’s technical and organizational measures for the Services provide a level of security appropriate to the risk.
7.3 Third-Party Certifications and Audits. Athennian has obtained the third-party certifications and audits set forth in the Athennian Security Program. On Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Athennian will make available to Customer a copy of Athennian’s then most recent third-party audits or certifications, as applicable.
8. AUDITS
8.1 Athennian Audits. For the purpose of evaluating Athennian’s compliance with the terms of this DPA, Athennian will provide Customer’s internal or external auditors with escorted access to Athennian’s office premises and to documents and records related to the Services, at Customer’s expense. For greater certainty, Customer auditors will not be entitled to access the data centers of the data center service provider from which the Services are provided without the consent of the data center service provider (which Athennian will request if asked to do so by Customer). Athennian will provide the Customer auditors with any assistance that they may reasonably request in connection with such audits. The audits must be conducted in a manner that minimizes the disruption on Athennian's operations, during normal business hours, on at least 30 days’ prior notice, and not more than once each calendar year. External auditors must enter into a nondisclosure agreement with Athennian substantially similar to the confidentiality provisions of the Agreement. Customer will pay for assistance provided by Athennian at the Consulting Services Rates.
8.2 Demonstration of Compliance. At Customer’s reasonable written request, Athennian will provide Customer with information to demonstrate Athennian’s compliance its obligations under this DPA. Customer will pay for work performed by Athennian in response to the request at the Consulting Services Rates.
9. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION
Athennian maintains security incident management policies and procedures specified in the Athennian Security Program. Athennian will notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by Athennian or its Sub-processors of which Athennian becomes aware (a “Personal Data Incident”). Athennian will make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Athennian deems necessary and reasonable to remediate the cause of such a Personal Data Incident to the extent the remediation is within Athennian’s reasonable control. These obligations shall not apply to incidents that are caused by Customer or Customer’s Users.
10. RETURN AND DELETION OF PERSONAL DATA
On request by Customer made within 90 days after the expiry or termination of the Agreement, Athennian will make any Personal Data in Athennian’s possession or control available to Customer for export or download in JSON/BSON or similar open source format as reasonably agreed between the parties. After such 90-day period, Athennian will have no obligation to maintain or provide any Personal Data, and will delete or destroy all copies of Personal Data in its systems or otherwise in its possession or control, unless legally prohibited by Applicable Laws.
11. LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and this DPA together.
12. GDPR SPECIFIC PROVISIONS
12.1 Application. This section titled “GDPR Specific Provisions” shall apply only if and to the extent that Processing of Personal Data is governed by the GDPR. In the event of any inconsistency between a term of this section and another term of this DPA, the term of this section shall apply for GDPR-Subject Personal Data.
12.2 Definition. In this section titled “GDPR Specific Provisions”, the following terms shall have the following meanings:
“GDPR-Subject Personal Data” shall mean Personal Data (1) that is Processed by Athennian, and (2) for which the Processing by Athennian is governed by the GDPR.
12.3 GDPR Requirements. Athennian will Process GDPR-Subject Personal Data in accordance with the GDPR requirements directly applicable to Athennian’s provision of the Services.
12.4 Processing of GDPR-Subject Personal Data under Applicable Laws of Europe. Athennian will Process GDPR-Subject Personal Data only in accordance with Documented Instructions, unless required to do so under Applicable Laws of a member state of the European Union or the EEA to which Athennian is subject. If Athennian is required to Process GDPR-Subject Personal Data by Applicable Laws of a member state of the European Union or the EEA to which Athennian is subject, then Athennian will promptly notify Customer unless prohibited by law.
12.5 Records of Processing Activities. Athennian will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the Processing of Personal Data on behalf of Customer, will make those records available to Customer on request.
12.6 Data Protection Impact Assessment and Prior Consultation. Taking into account the nature of the Services and the information available to Athennian, Athennian will assist Customer in complying with Customer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles 35 and 36 of the GDPR, to the extent Customer does not otherwise have access to the relevant information and to the extent such information is available to Athennian. Customer will pay for assistance provided by Athennian at the Consulting Services Rates.
12.7 Application of Standard Contractual Clauses. The Standard Contractual Clauses will not apply to GDPR-Subject Personal Data that is transferred, either directly or by onward transfer, to (a) any country that is a member of the European Union or the EEA, (b) any country recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR), (c) any organization within the Athennian group of companies that is subject to binding corporate rules under the GDPR, or (d) any country or organization where the transfer is otherwise permitted under the GDPR. The Standard Contractual Clauses will apply to all other transfers of GDPR-Subject Personal Data to a country that is not a member of the European Union or the EEA.
12.8 Standard Contractual Clauses, Terms. If and to the extent that the Standard Contractual Clauses apply, then:
(i) For the purposes of Clause 5(a) of the Standard Contractual Clauses, the Documented Instructions are deemed to be Customer’s complete and final instructions to Athennian in relation to Processing of Personal Data.
(ii) For the purposes of Clauses 5(f) and 12(2) of the Standard Contractual Clauses, the parties agree that the obligation of Athennian to permit audits shall be satisfied by Athennian’s provision of third-party audits or certifications under the section titled “Third-Party Certifications and Audits”.
(iii) For the purposes of Clause 5(h) of the Standard Contractual Clauses, Customer agrees that Athennian may engage Sub-processors as described in the section titled “Sub-processors”.
(iv) For the purposes of Clause 5(j) of the Standard Contractual Clauses, copies of any Sub-processor agreement that must be provided by Athennian to Customer may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by Athennian beforehand; and, that such copies will be provided by Athennian, in a manner to be determined in its discretion, only on request by Customer.
(v) For the purposes of Clause 12(1) of the Standard Contractual Clauses, the parties agree that the certification of deletion of Personal Data will be provided by Athennian to Customer only on Customer’s request.
(vi) In the event of any inconsistency between a term of the Standard Contractual Clauses as amended by this section and another term of this DPA, the term of the Standard Contractual Clauses shall apply.
13. CCPA SPECIFIC PROVISIONS
13.1 Application. This section titled “CCPA Specific Provisions” shall apply only if and to the extent that Processing of Personal Data is governed by the CCPA. In the event of any inconsistency between a term of this section and another term of this DPA, the term of this section shall apply for CCPA-Subject Personal Data.
13.2 Definitions. In this section titled “CCPA Specific Provisions”, the following terms shall have the following meanings:
“CCPA-Subject Personal Data” shall mean Personal Information (1) that is Processed by Athennian as part of the Services, and (2) for which the Processing by Athennian is governed by the CCPA.
“Personal Information” shall have the meaning provided under the CCPA.
“Sell” shall have the meaning provided under the CCPA.
13.3 CCPA Requirements. For the purposes of this DPA, Athennian is a “service provider” to Customer under the CCPA. Customer may be either a “business” or a “service provider’ under the CCPA. Athennian will Process CCPA-Subject Personal Data in accordance with the CCPA requirements directly applicable to Athennian’s provision of the Services. Athennian will not: (a) retain, use, or disclose CCPA-Subject Personal Data except as permitted in the Agreement, this DPA, or the CCPA; or (b) Sell CCPA-Subject Personal Data.
Attachment 1 to the Data Processing Addendum
The Standard Contractual Clauses (Processors)
Execution of the Agreement by Customer and Athennian is deemed to include execution of this Attachment 1.
In countries where regulatory approval is required for use of the Standard Contractual Clauses, the Standard Contractual Clauses cannot be relied upon under European Commission 2010/87/EU (of February 2010) to legitimize export of data from the country, unless Customer has the required regulatory approval.
Beginning May 25, 2018 and thereafter, references to various Articles from the Directive 95/46/EC in the Standard Contractual Clauses below will be treated as references to the relevant and appropriate Articles in the GDPR.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Customer (as data exporter) and Paper Interactive, Inc., dba Athennian (as data importer), each a “party,” together “the parties,” have agreed on the following Contractual Clauses (the “Clauses” or “Standard Contractual 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 subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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 below which forms an integral part of the Clauses.
Clause 3: Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4: Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 below;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, (ii) any accidental or unauthorised access, and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise 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 subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11; and
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
1. The parties agree that any data subject who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7: Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8: Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
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: Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12: Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1
to the Standard Contractual Clauses
Data exporter: The data exporter is Customer, and the purpose of the export is to obtain the Services ordered by Customer under the Agreement, as more particularly described in the Documentation, and which are generally SaaS solutions for legal entity management.
Data importer: The data importer is Paper Interactive, Inc., dba Athennian, a provider of SaaS solutions for legal entity management.
Data subjects: The personal data transferred concern the following categories of data subjects: (i) shareholders, partners, limited partners, directors, officers, employees and other individuals connected with corporations and other legal entities, the records of which are managed by Customer using the Services, and (ii) Customer’s employees and end-users.
Categories of data: The personal data transferred concern the following categories of data: Personal Data provided by Customer to the Services, as more particularly described in the Documentation, including but not limited to name, title, position, personal address, business address, citizenship, relationship to managed legal entity, role within managed legal entity, contact information, and identification.
Special categories of data: The personal data transferred concern the following special categories of data: the use of the service for legal entity management would not typically include special categories of data, but the functionality of the Services allows Customer to submit special categories of data in some circumstances, in its sole discretion.
Processing operations: The personal data transferred will be subject to the following basic processing activities: the personal data transferred will be processed for the purpose of providing Services to Customer under the Agreement.
Appendix 2
to the Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Athennian will implement and maintain appropriate technical and organizational measures to protect personal data, including measures to protect personal data from unauthorized access, use, modification, encryption, deletion, loss or disclosure. Those measures will be described in the Athennian Security Program. Athennian will make that Athennian Security Program available to Customer, along with other information reasonably requested by Customer regarding Athennian security practices and policies.
END OF DATA PROCESSING ADDENDUM
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