This Data Processing Addendum (this “Addendum”) is effective as of 25 May 2018 (the “Addendum Effective Date”) by and between Adzerk, Inc (“Adzerk”) and the customer specified in the table below (“Customer”).
This Addendum supplements the Adzerk Customer Terms of Service available at https://dev.adzerk.com/docs/terms-of-service, as updated from time to time between Customer and Adzerk, or other agreement between Customer and Adzerk governing Customer’s use of the Service Offerings (the “Agreement”). Unless otherwise defined this Addendum or in the Agreement, all capitalized terms used in this Addendum will have the meanings given to them in Section 19 of this Addendum.
1. Data Processing
1.1 Scope and Roles. This Addendum applies when Customer Data is processed by Adzerk. In this context, Adzerk will act as “processor” to the Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).
1.2 Customer Controls. The Service Offerings provide Customer with a number of controls, including security features and functionalities, that Customer may use to retrieve, correct, delete or restrict Customer Data as described in the Documentation. Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects.
1.3 Details of Data Processing.
1.3.1 Subject matter. The subject matter of the data processing under this Addendum is the Customer Data.
1.3.2 Duration. As between Adzerk and Customer, the duration of the data processing under this Addendum is determined by Customer.
1.3.3 Purpose. The purpose of the data processing under this Addendum is the provision of the Services initiated by the Customer from time to time.
1.3.4 Nature of the processing: Decision serving, storage and such other Services as described in the Documentation and initiated by the Customer from time to time.
1.3.5 Type of Customer Data: The Customer Data uploaded to the Adzerk Services under Customer’s Adzerk accounts.
1.3.6 Categories of data subjects: The data subjects may include Customer’s customers, employees, suppliers and end‐users.
1.4 Compliance with Adzerk. Each party will comply with all Adzerk rules and regulations applicable to it and binding on it in the performance of this Addendum, including the GDPR.
1.5 Access or Use. Adzerk will not access or use Customer Data, except as necessary to maintain or provide the Service Offerings, or as necessary to comply with the law or binding order of a governmental body.
2. Customer Instructions
Adzerk will process Customer Data only in accordance with Customer’s instructions. The parties agree that this Addendum is Customer’s complete and final documented instruction to Adzerk in relation to Customer Data. Additional instructions outside the scope of this Addendum (if any) require prior written agreement between Adzerk and Customer, including agreement on any additional fees payable by Customer to Adzerk for carrying out such instructions. Customer is entitled to terminate this Addendum and the Agreement if Adzerk declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this Addendum. Customer shall ensure that its instructions comply with all Adzerk rules and regulations applicable in relation to the Customer Data, and that the processing of Customer Data in accordance with Customer’s instructions will not cause Adzerk to be in breach of the GDPR.
3. Confidentiality of Customer Data
Adzerk will not disclose Customer Data to any government or any other third party, except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a subpoena or court order). If a law enforcement agency sends Adzerk a demand for Customer Data, Adzerk will attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Adzerk may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then Adzerk will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Adzerk is legally prohibited from doing so.
4. Confidentiality Obligations of Adzerk Personnel
Adzerk restricts its personnel from processing Customer Data without authorization by Adzerk as described in the Adzerk Security Standards. Adzerk imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
5. Security of Data Processing
5.1 Adzerk has implemented and will maintain the technical and organizational measures for the Adzerk Network as described in the Adzerk Security Standards and this Section of this Addendum. In particular, Adzerk has implemented and will maintain the following technical and organizational measures:
a. Security of the Adzerk Network as set out in Section 1.1 of the Adzerk Security Standards;
b. Measures to control access rights for Adzerk employees and contractors in relation to the Adzerk Network as set out in Section 1.1 of the Adzerk Security Standards; and
c. Processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Adzerk as described in Section 2 of the Adzerk Security Standards.
5.2 Customer may elect to implement technical and organizational measures in relation to the Customer Data. Such technical and organizational measures include the following which may be obtained by Customer directly from a third party supplier or from Adzerk as described in the Documentation:
a. Measures to ensure the ongoing confidentiality, integrity, availability and resilience of the processing systems and services provided by Customer to third parties;
b. Measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and
c. Processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Customer.
6.1 Authorized Sub‐processors. Customer agrees that Adzerk may use sub‐processors to fulfil its contractual obligations under this Addendum or to provide certain services on its behalf, such as providing support services. The Adzerk website lists sub‐processors that are currently engaged by Adzerk to carry out specific processing activities on behalf of the Customer. At least 30 days before Adzerk engages any new sub‐processor to carry out specific processing activities on behalf of Customer, Adzerk will update the applicable website. If Customer objects to a new sub‐processor, then without prejudice to any termination rights Customer has under the Agreement and subject to the applicable terms and conditions, Customer may move the Customer Data to another Adzerk Region where the new sub‐processor who is not approved by Customer is not an authorized sub‐ processor. Customer hereby consents to Adzerk’s use of sub‐processors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorized, Adzerk will not permit any sub‐processor to carry out specific processing activities on behalf of Customer.
6.2 Sub‐processor Obligations. Where Adzerk authorized any sub‐processor as described in Section 6.1:
i. Adzerk will restrict the sub‐processor’s access to Customer Data only to what is necessary to maintain the Service Offerings or to provide the Service Offerings to Customer and any End Users in accordance with the Documentation, Adzerk will prohibit the sub‐processor from accessing Customer Data for any other purpose;
ii. Adzerk will enter into a written agreement with the sub‐processor and, to the extent that the sub‐processor is performing the same data processing services that are being provided by Adzerk under this Addendum, Adzerk will impose on the sub‐processor the same contractual obligations that Adzerk has under this Addendum; and
iii. Adzerk will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of the sub‐processor that cause Adzerk to breach any of Adzerk’s obligations under this Addendum.
7. Data Subject Rights
Taking into account the nature of the Service Offerings, Adzerk offers Customer certain controls as described in Sections 1.1 and 8 that Customer may elect to use to comply with its obligations towards data subjects.
8. Optional Security Features
Adzerk makes available a number of security features and functionalities that Customer may elect to use. Customer is responsible for (a) properly configuring the Service Offerings, (b) using the controls available in connection with the Service Offerings (including the security controls) to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (c) using the controls available in connection with the Service Offerings (including the security controls) to allow the Customer to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (d) taking such steps as Customer considers adequate to maintain appropriate security, protection, and deletion of Customer Data.
9. Security Breach Notification
9.1 Security Incident. If Adzerk becomes aware of a Security Incident, Adzerk will without undue delay: (a) notify Customer of the Security Incident; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
9.2 Adzerk Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, Adzerk will include in the notification under section 9.1(a) such information about the Security Incident as Adzerk is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Adzerk, and any restrictions on disclosing the information, such as confidentiality.
9.3 Unsuccessful Security Incidents. Customer agrees that:
i. An unsuccessful Security Incident will not be subject to this Section 9. An unsuccessful Security Incident is one that results in no unauthorized access to Customer Data or to any of Adzerk’s equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful login attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
ii.Adzerk’s obligation to report or respond to a Security Incident under this Section 9 is not and will not be construed as an acknowledgement by Adzerk of any fault or liability of Adzerk with respect to the Security Incident.
9.4 Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Adzerk selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the Adzerk management console and secure transmission at all times.
10. Transfers of Personal Data
10.1 Regions. Customer may specify the location(s) where Customer Data will be processed within the Adzerk Network, dependent on what server regions are currently available. Once Customer has made its choice, Adzerk will not transfer Customer Data from Customer’s selected Region(s) except as described in Section 3 of the Agreement.
11. Termination of the Addendum
This Addendum shall continue in force until the termination of the Agreement (the “Termination Date”).
12. Return or Deletion of Customer Data
The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this Section. For 30 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless (i) prohibited by law or the order of a governmental or regulatory body or it could subject Adzerk or its Affiliates to liability, or (ii) Customer has not paid all amounts due under this Agreement, other than Disputed Amounts. No later than the end of this 30 day period, Customer will close all Adzerk accounts. Adzerk will delete all Customer Data within 30 days of Termination Date, or sooner in accordance with a written request.
13. Limitations of Liability
The liability of each party under this Addendum shall be subject to the exclusions and limitations of liability set out in the Agreement. Customer agrees that any regulatory penalties incurred by Adzerk in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum and the GDPR shall count towards and reduce Adzerk’s liability under the Agreement as if it were liability to the Customer under the Agreement.
14. Duties to Inform
Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Adzerk, Adzerk will inform Customer without undue delay. Adzerk will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
Customer agrees that the details of this Addendum are not publicly known and constitute Adzerk’s Confidential Information under the confidentiality provisions of the Agreement or NDA. If the Agreement does not include a confidentiality provision protecting Adzerk Confidential Information and Customer and Adzerk or its affiliates do not have an NDA in place covering this Addendum, then Customer will not disclose the contents of this Addendum to any third party except as required by law.
16. Entire Agreement; Conflict
This Addendum supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Adzerk, whether written or verbal, regarding the subject matter of this Addendum, including any data processing addendum entered into between Adzerk, Inc. and Customer containing terms and conditions in respect of 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. Except as amended by this Addendum, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this Addendum, the terms of this Addendum will control.
17. Counterparts and Facsimile or Email Delivery
This Addendum may be executed in two or more counterparts, each of which will be deemed an original and all of which taken together will be deemed to constitute one and the same document. The parties deliver this Addendum by facsimile or email transmission.
Unless otherwise defined in the Agreement, all capitalized terms used in this Addendum will have the meanings given to them below:
“Adzerk Network” means the AWS data center facilities, servers, networking equipment, and host software systems that are re-sold by Adzerk to provide the Services.
“Adzerk Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this Addendum as Annex 1.
“Customer Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Services under Customer’s Adzerk accounts.
"Documentation” means the API documentation and user guides provided by Adzerk on its web site.
"GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“EEA” means the European Economic Area.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Post‐Termination Period” means the 30 days period following the Termination Date in which Customer can retrieve Customer Content from the Services.
“Security Incident” either (a) a breach of security of the Adzerk Security Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Data; or (b) any unauthorized access to Adzerk equipment or facilities, where in either case such access results in destruction, loss, unauthorized disclosure, or alteration of Customer Data.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this Addendum pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under the Directive.
Adzerk Security Standards
Capitalized terms not otherwise defined in this document have the meanings assigned to them in the applicable Adzerk Enterprise Customer Agreement.
1. Information Security Program
Adzerk will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) satisfy the Security Objectives, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the Adzerk Network, and (c) minimize security risks, including through risk assessment and regular testing. Adzerk will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security. The Adzerk Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. Adzerk will maintain access controls and policies to manage what access is allowed to the Adzerk Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. Adzerk will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
1.2.1 Physical Access Controls. Physical components of the Adzerk Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in‐house security guard service, receptionist, etc.). Employees and contractors are assigned photo‐ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign‐in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. Adzerk provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Adzerk or its Affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Adzerk also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion‐detection, or other devices designed to detect individuals attempting to gain access to the Facilities.
2. Continued Evaluation
Adzerk will conduct periodic reviews of the security of its Adzerk Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. Adzerk will continually evaluate the security of its Adzerk Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The entity identified as “Customer” in the Addendum
(the “data exporter”)
510 Washington Street, Suite D, Durham, NC 27701, USA
(the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1
Clause 1: Definitions
For the purposes of the Clauses:
'Personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
'The data exporter' means the controller who transfers the personal data;
'The data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
'The subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
'The applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
'Technical and 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 subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third‐party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4 : Obligations of the data exporter
The data exporter agrees and warrants:
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 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;
d. That it will ensure compliance with the security measures;
e. 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;
f. 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;
g. To make available to the data subjects upon request a copy of the Clauses
h. 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
i. That it will ensure compliance with Clause 4(a) to (h).
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 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;
d. 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; 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.
e. 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;
f. To make available to the data subject upon request a copy of the Clauses
g. That, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
h. That the processing services by the subprocessor will be carried out in accordance with Clause 11;
i. To send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7: Mediation and jurisdiction
The data importer agrees that if the data subject invokes against it third‐party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9: Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Subprocessing
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for a third‐party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third‐party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12: Obligation after the termination of personal data processing services
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Data exporter - The data exporter is the entity identified as “Customer” in the Addendum
Data importer - The data importer is Adzerk, Inc., a provider of web services.
Data subjects - Data subjects are defined in Section 1.2 of the Addendum.
Categories of data - The personal data is defined in Section 1.3 of the Addendum.
Processing operations - The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 1.3 of the Addendum.