Data Processing Addendum

Our GDPR agreement for customers who process personal data on behalf of EU/EEA individuals.

This Data Processing Addendum ("DPA") supplements the Terms of Use ("TOU"), as updated from time to time between you (together with subsidiary(ies) and affiliated entities, collectively, "Customer") and MailerSend, Inc. (together with subsidiary(ies), collectively, "MailerSend") (hereinafter collectively referred to as "Parties" and individually "Party") when the GDPR applies to the Customer’s use of MailerSend’s Services to process Customer data.

This DPA is effective from the date the Customer agrees with the terms and conditions of the TOU. If there is any conflict between this DPA and the TOU, the relevant terms of this DPA take precedence.

1. Definitions

1.1. "Account Data" means information about the Customer that the Customer provides to MailerSend in connection with the creation or administration of its MailerSend accounts, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. The Customer shall ensure that all Account Data is current and accurate at all times during the term of the TOU.

1.2. "Authorized User" means an individual employee, agent or contractor of the Customer for whom subscriptions to Services have been granted pursuant to the terms of the TOU.

1.3. "Customer Credentials" means access passwords, keys or other credentials used by the Customer in connection with the Services.

1.4. "Customer Data" means any Personal Data that MailerSend Processes on behalf of the Customer as a Data Processor in the course of providing its Services.

1.5. "Data Controller" means an entity that determines the purposes and means of the Processing of Personal Data.

1.6. "Data Processor" means an entity that Processes Personal Data on behalf of a Data Controller.

1.7. "Data Protection Laws" means all data protection and privacy laws and regulations applicable to a party’s processing of Customer Data under the Terms of Use, including, where applicable, laws of the EU, EEA and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data and non-EU data protection laws.

1.8. "Data Subject" means the identified or identifiable person to whom Personal Data relates.

1.9. "EEA" means the European Economic Area, the United Kingdom, and Switzerland.

1.10. "EU" means the European Union and European Economic Area and/or their member states.

1.11. "GDPR" means the Regulation (EU) 2016/679 of the European Parliament and 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).

1.12. "Personal Data" means any information relating to an identified or identifiable natural person as defined in the GDPR.

1.13. "Processing" means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. "Process", "Processes" and "Processed" shall be interpreted accordingly.

1.14. "Processor" means a natural or legal person, public authority, agency, or any other body which Processes Personal Data on behalf of the Data Controller.

1.15. " SCCs" means the standard contractual clauses as approved by the European Commission.

1.16. "Services" means any product or service provided by MailerSend pursuant to MailerSend’s TOU.

1.17. "Sub-Processor" means any third-party Processor engaged by MailerSend.

2. Scope and Roles

2.1. MailerSend has agreed to enter into this DPA based on the Customer’s belief that Customer Data may include Personal Data that originates from EU/EEA and/or that is otherwise subject to the GDPR. Accordingly, this DPA supplements the TOU and applies exclusively to MailerSend’s Processing of Customer Data in providing Services under the TOU to the Customer.

2.2. MailerSend agrees to comply with the following provisions with respect to any Personal Data Processed for the Customer in connection with the provision of the Services.

2.3. The Parties agree that with regard to the Processing of Personal Data, the Customer is the Data Controller and MailerSend is a Data Processor, acting on behalf of the Customer, as further described in Annex 1 (“Details of Data Processing”) of this DPA. Each Party will comply with its respective obligations under EU Data Protection Law.

3. Customer’s Processing of Personal Data

3.1. The Customer is responsible for the control of Personal Data and must comply with its obligations as a Data Controller under Data Protection Laws, in particular for justification of any transfer of Customer Data to MailerSend and its decisions and actions regarding the Processing and use of Personal Data.

4. MailerSend’s Processing of Customer Data

4.1. By entering into this DPA, the Customer instructs MailerSend to Process Customer Data to provide the Services in accordance with the features and functionality of the Services.

4.2. In connection with MailerSend’s delivery of the Services to the Customer, MailerSend shall Process certain categories and types of the Customer data, only for the purposes described in this DPA and only in accordance with the Customer’s documented lawful instructions, including with regard to transfers of Customer data to a third country or an international organization, unless required to do so by the EU or a Member State of the EU law to which MailerSend is subject. In such a case, MailerSend shall inform the Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

4.3. The Parties agree that this DPA sets out the Customer’s complete and final instructions to MailerSend in relation to the Processing of Customer Data. The Processing outside the scope of these instructions shall require a prior written agreement between the Customer and MailerSend. Notwithstanding the foregoing, MailerSend will inform the Customer promptly if it becomes aware that the Customer’s instructions may violate applicable EU Data Protection Law.

5. Customer Responsibilities and Restrictions

5.1. Without limiting its responsibilities under the TOU, the Customer is solely responsible for: (a) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to MailerSend’s Processing obligations under the TOU and this DPA; (b) providing any notices required by EU Data Protection Law to, and receiving any required consents and authorizations required by EU Data Protection Law from, persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials; and (c) ensuring no Personal Data relating to criminal convictions and offenses (GDPR Article 10) are submitted for Processing by the Services.

6. Security

6.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects, MailerSend shall in relation to Customer Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk (including those outlined in Annex 2, "Security Measures"). In assessing the appropriate level of security, MailerSend shall take into account the risks that are presented by Processing Customer Data including, in particular, the risks presented by a Customer Data Breach (as defined in Section 10). MailerSend may make such changes to the Security Measures as MailerSend deems necessary or appropriate from time to time, including without limitation to comply with applicable law, but no such changes will reduce the overall level of protection for Customer Data. MailerSend will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Sub-Processors to the extent applicable to their scope of performance, including ensuring that all persons authorized to Process Customer Data have agreed to appropriate obligations of confidentiality.

6.2. The Parties shall take steps to ensure that any natural person acting under the authority of the Customer or MailerSend who has access to Personal Data does not Process them except on instructions from the Customer, unless he or she is required to do so by the EU or an EU Member State law.

6.3. The Customer is responsible for reviewing the information made available by MailerSend relating to its data security and making an independent determination as to whether the Services meet the Customer’s requirements and legal obligations under Data Protection Laws. The Customer acknowledges that MailerSend may update or modify MailerSend’s security standards from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

6.4. The Customer agrees it is responsible for its secure use of the Services, including securing its Customer Credentials, protecting the security of Customer Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.

7. Sub-Processors

7.1. The Customer acknowledges and agrees that MailerSend may engage third-party Sub-Processors in connection with the provision of Services, and hereby consents to MailerSend’s use of Sub-Processors. As a condition to permitting a third-party Sub-Processor to Process Customer Data, MailerSend will enter into a written agreement with the Sub-Processor containing data protection obligations no less protective than those in this DPA with respect to Customer Data. MailerSend will restrict its Sub-Processors’ access to only what is necessary to maintain the Services or to provide the Services to Customers. Subject to this Section 7, MailerSend reserves the right to engage and substitute Sub-Processors as it deems appropriate, but shall: (a) remain responsible to the Customer for the provision of the Services and (b) be liable for the actions and omissions of its Sub-Processors undertaken in connection with MailerSend’s performance of this DPA to the same extent MailerSend would be liable if performing the Services directly.

7.2. Upon the Customer’s request by email to info@mailersend.com, MailerSend will provide the Customer with a list of then-current third-party Sub-Processors and the nature of the services they provide. The Customer can find an up-to-date list of Sub-Processors in Annex 4 of this DPA. The Customer may object to any new Sub-Processor on reasonable legal grounds (the "Objection Notice") relating to the protection of the Customer Data, in which case MailerSend shall have the right to satisfy the objection through one of the following:

(a) MailerSend will cancel its plans to use the Sub-Processor with regard to Customer Data or will offer an alternative to provide the Services without such Sub-Processor;

(b) MailerSend will take the corrective steps requested by the Customer in its Objection Notice (which removes the Customer’s objection) and proceed to use the Sub-Processor with regard to Customer Data; or

(c) MailerSend may cease to provide, or the Customer may agree not to use (temporarily or permanently), the particular aspect of the Services that would involve the use of such Sub-Processor with regard to Personal Data, subject to a mutual agreement of the Parties to adjust the remuneration for the Services considering their reduced scope.

7.3. All Objection Notices under Section 7.2 must be submitted by email to MailerSend at info@mailersend.com. If none of the options outlined in Clause (a), (b) or (c) of Section 7.2 are reasonably available and Customer’s objection has not been resolved to the Parties’ mutual satisfaction within 30 days of MailerSend’s receipt of the Objection Notice, either Party may terminate the affected Services and MailerSend will refund to the Customer a pro rata share of any unused amounts prepaid by the Customer. The refund will be calculated in proportion to what Services have been provided until the time the Customer has informed MailerSend on terminating the Services. MailerSend does not provide any refunds if the Objection Notice does not have reasonable legal grounds.

8. Data Subject Rights

8.1. If MailerSend receives a request from a Data Subject in relation to the Customer Data then, to the extent legally permissible, MailerSend will advise the Data Subject to submit their request to the Customer and the Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services. The Customer hereby agrees that MailerSend may confirm to a Data Subject that his or her requests relate to the Customer. To the extent the Customer is unable through its use of the Services to address a particular Data Subject request, MailerSend will, upon the Customer’s request and taking into account the nature of Customer Data Processed, provide reasonable assistance in addressing the Data Subject request (provided MailerSend is legally permitted to do so and that the Data Subject request was made in accordance with EU Data Protection Law). To the extent permitted by applicable law, the Customer shall be responsible for any costs arising from MailerSend’s provision of such assistance.

9. Deletion Upon Expiration

9.1. Upon termination of the TOU and/or DPA, MailerSend will initiate a process upon the Customer’s written request that deletes the Customer Data in its possession or control. This requirement shall not apply to the extent MailerSend is required by the applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems where Customer Data is securely isolated and protected from any further processing, except to the extent required by applicable law.

10. Customer Data Breach Management

10.1. MailerSend will notify the Customer without undue delay, and in any event within 48 hours, after becoming aware of a Personal Data Breach with respect to Customer Data transmitted, stored or otherwise Processed by MailerSend or its Sub-Processors (a “Customer Data Breach”). Such notice may be provided (1) by posting a notice in the Services; (2) by sending an email to the email address from which the account of Authorized User was created; and/or (3) pursuant to the notice provisions of the TOU. The Customer shall ensure that its contact information is current and accurate at all times during the terms of this DPA. MailerSend will promptly take all actions relating to its Security Measures (and those of its Sub-Processors) that it deems necessary and advisable to identify and remediate the cause of a Customer Data Breach. In addition, MailerSend will promptly provide the Customer with: (i) reasonable cooperation and assistance with regard to the Customer Data Breach, (ii) reasonable information in MailerSend’s possession concerning the Customer Data Breach insofar as it affects the Customer, including remediation efforts and any notification to Supervisory Authorities and, (iii) to the extent known: (a) the possible cause of the Customer Data Breach; (b) the categories of Customer Data involved; and (c) the possible consequences to Data Subjects. MailerSend’s notification of or response to a Customer Data Breach under this Section will not constitute an acknowledgment of fault or liability with respect to the Customer Data Breach, and the obligations herein shall not apply to Personal Data Breaches that are caused by the Customer, Authorized Users or providers of Customer components (such as systems, platforms, services, software, devices, etc.). If the Customer decides to notify a Supervisory Authority, the Data Subjects or the public of a Customer Data Breach, the Customer will provide MailerSend with advance copies of the proposed notices and, subject to applicable law (including any mandated deadlines under EU Data Protection Law), allow MailerSend an opportunity to provide any clarifications or corrections to those notices. Subject to applicable law, MailerSend will not reference the Customer in any public filings, notices or press releases associated with the Customer Data Breach without the Customer’s prior consent.

11. Compliance and Reviews

11.1. Upon request, MailerSend shall supply, on a confidential basis, a copy of its audit reports (if any) to the Customer, so that the Customer can verify MailerSend's compliance with the audit standards and this DPA.

11.2. MailerSend shall also provide written responses, on a confidential basis, to all the Customer’s reasonable requests for information to confirm MailerSend's compliance with this DPA.

11.3. Where required by EU Data Protection Law, MailerSend will allow the Customer (directly or through a third-party auditor subject to written confidentiality obligations) to conduct a remote audit of MailerSend’s procedures relevant to the protection of Customer Data to verify MailerSend’s compliance with its obligations under this DPA. In such case:

(a) The Customer shall: (i) provide MailerSend at least 30 days’ prior written notice of any proposed audit; (ii) undertake an audit no more than once in any 12-month period, except where required by a competent Supervisory Authority or where an audit is required due to a Customer Data Breach; and (iii) conduct any audit in a manner designed to minimize disruption of MailerSend’s normal business operations. To that end and before the commencement of any such audit, the Customer and MailerSend shall mutually agree upon any reimbursement of expenses for which the Customer shall be responsible as well as the audit’s participants, schedule and scope, which shall in no event permit the Customer or its third-party auditor to access the Services’ hosting sites, underlying systems or infrastructure.

(b) Representatives of the Customer performing an audit shall protect the confidentiality of all information obtained through such audits in accordance with the TOU, and they may be required to execute an enhanced mutually agreeable nondisclosure agreement. Upon completion of an audit, the Customer agrees to promptly furnish to MailerSend any written audit report or, if no written report is prepared, to promptly notify MailerSend of any non-compliance discovered during the course of the audit.

12. Impact Assessment and Additional Information 

12.1. MailerSend will provide the Customer with reasonable cooperation, information and assistance as needed to fulfill the Customer’s obligation under EU Data Protection Law, including as needed to carry out a data protection impact assessment related to the Customer’s use of the Services (in each case to the extent the Customer does not otherwise have access to the relevant information, and such information is in MailerSend’s control). Without limiting the foregoing, MailerSend shall provide reasonable assistance to the Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section to the extent required by EU Data Protection Law.

13. International Transfers

13.1. The Customer acknowledges that MailerSend may transfer and process Customer Data to and in the United States and anywhere else in the world where MailerSend, its affiliates or its Sub-Processors maintain data processing operations. MailerSend shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.

13.2. To the extent that MailerSend is a recipient of Customer Data protected by EU Data Protection Laws ("EU Data") in a country outside of Europe that is not recognized as providing an adequate level of protection for personal data (as described in applicable EU Data Protection Law), the parties agree that MailerSend shall abide by and process EU Data in compliance with the SCCs in the form set out in Annex 3. For the purposes of the descriptions in the SCCs, MailerSend agrees that it is the "data importer" and the Customer is the "data exporter" (notwithstanding that the Customer may itself be an entity located outside Europe). 

13.2. Sub-Processors used by MailerSend to Process any Customer Data protected by Data Protection Laws and/or that originates from the EEA, in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) will provide an adequate level of protection for Personal Data and have SCCs integrated in their Data Processing Agreements.

14. Processing as Controller

14.1. The Parties believe MailerSend’s role is as a Processor with respect to Customer Data. In relation to the Processing of Account Data, and to the extent (if any) that MailerSend may be considered a Controller in relation to certain Processing of Customer Personal Data, each Party will comply with its obligations as a Controller and agrees to provide reasonable assistance as is necessary: (a) to each other to enable each Party to comply with any Data Subject access requests and to respond to any other queries or complaints from Data Subjects in accordance with the EU Data Protection Law; and (b) to each other to facilitate the handling of any Personal Data Breach as required under EU Data Protection Law.

15. Limitation of Liability and Applicable Law

15.1. Each Party’s 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 provisions of the TOU.

16. Miscellaneous Provisions

16.1. Any claims brought under or in connection with this DPA are subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the TOU.

16.2. No one other than a Party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

16.3. Any claims against MailerSend under this DPA shall be brought solely against the entity that is a Party to the DPA. In no event shall any Party limit its liability with respect to any individual's data protection rights under this DPA or otherwise. The Customer further agrees that any regulatory penalties incurred by MailerSend in relation to the Customer Data that arise as a result of, or in connection with, the Customer's failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce MailerSend’s liability under the DPA.

16.4. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the TOU, unless required otherwise by applicable Data Protection Laws.

16.5. The Customer ensures that the decision to agree with the terms and conditions of this DPA was made lawfully by the Customer, in case the Customer is a natural person, or, by the Customer’s director, authorized representative or other person having signatory powers, in case the Customer is a legal person.

16.6. This DPA enters into force from the day you agreed with our Terms of Use and continues for an indefinite period of time.

Annex 1

Details of Data Processing

1. Subject matter: The subject matter of the data Processing under this DPA is the Customer Data.

2. Duration of Processing: MailerSend will Process Customer Data for the duration of the Services, as described in the TOU.

3. Nature of the Processing: MailerSend provides transactional email services and other related services, as described in the TOU.

4. Purpose of the Processing: The purpose of the data Processing under this DPA is the provision of the Services.

5. Categories of Data subjects:

5.1. "Users" - any individual accessing and/or using the Services through the Customer's account;

5.2. "Subscribers" - any individual whose email address is included in the Customer's distribution list / whose information is stored / to whom Users send emails or otherwise engage or communicate with via the Services.

6. Types of Customer Data:

6.1. Users: identification and contact data (name, contact details, including email address, username); billing information (credit card details, account details, payment information); organization information (name, address, geographic location, area of responsibility, VAT code), IT information (IP address, usage data, cookies data, online navigation data, location data, browser data, access device information);

6.2. Subscribers: identification and contact data (email address), IT information (IP address, location data, access device information) and/or any other information the Customer provides to MailerSend.

7. The Customer acknowledges that MailerSend shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development or other. To the extent any such data is considered Personal Data under Data Protection Laws, MailerSend is the Data Controller of such data and accordingly shall process such data in accordance with MailerSend’s Privacy Policy and Data Protection Laws.

8. The Customer acknowledges that in connection with the performance of the Services, MailerSend employs the use of cookies, unique identifiers, web beacons and similar tracking technologies. The Customer shall maintain appropriate notice mechanisms as are required by Data Protection Laws to enable MailerSend to deploy previously mentioned tracking technologies lawfully on and collect data from the devices of their clients. The Customer may use this statement about MailerSend in the Customer’s Privacy Policy:

"We use MailerSend to send transactional emails to our clients. MailerSend is a third-party provider, which may collect and process your data using industry standard technologies to help us monitor and improve our transactional emails. MailerSend’s Privacy Policy is available at https://www.mailersend.com/privacy-policy.” 

Annex 2

Security Measures

Security Measures of MailerSend as of the date of this DPA:

1. Access Control and Employees’ Education

1.1. MailerSend restricts access to Customer Data to employees with a defined need-to-know or a role requiring such access.

1.2. MailerSend’s employees are introduced with the best security practices which allow them to identify Customer Data Breach and take any actions needed.

2. Business Continuity

2.1. MailerSend maintains business continuity and backup plans in order to minimize the loss of service and comply with applicable laws.

2.2. The Backup plan addresses threats to the Services and any dependencies, and has an established procedure for resuming access to, and use of, the Services.

2.3. The Backup plan is tested at regular intervals.

3. Change Control

3.1. MailerSend maintains policies and procedures for applying changes to the Services, including underlying infrastructure and system components, to ensure quality standards are being met.

3.2. MailerSend undergoes a penetration test of its network and Services on an annual basis. Any vulnerabilities found during this testing will be remediated in accordance with MailerSend’s procedures.

4. Data Security

4.1. MailerSend maintains technical safeguards and other security measures to ensure the security and confidentiality of Customer Data.

4.2. MailerSend’s data storage centers are in the European Union and have information storage security certificates (ISO 27001) as well as certificates of IT service management (ISO 20000) that ensure safety of Customer Data.

5. Encryption and Key Management

5.1. MailerSend maintains policies and procedures for the management of encryption mechanisms and cryptographic keys in MailerSend’s cryptosystem.

5.2. MailerSend enlists encryption at rest and in transit between public networks, as applicable, according to industry-standard practice.

Annex 3 

Standard Contractual Clauses (Processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection Customer (the data exporter) and MailerSend, Inc. (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 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

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 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.

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 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 organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any 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

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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

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 sub-processor 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 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.

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 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

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 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.

3. 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

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 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.

2. 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.

3. 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.

4. 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

1. 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.

2. 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.