(hereinafter referred to as “Accredible DPA”)
by and between
1. EdInvent, Inc., D.B.A. as Accredible; Accredible, 800 West El Camino Real, Suite 180, Mountain View, CA 94040 United States
- hereinafter referred to as “Accredible” -
and
2. each Accredible customer
- hereinafter referred to as “Customer” -
- Accredible and Customer hereinafter referred to as “Parties” and each as “Party” -
Accredible performs cloud-based services to Customer ("Services") as agreed between the Parties in the Accredible Certificate Cloud Services Agreement between Customer and Accredible ("Cloud Services Agreement"). In the course of providing the Services, Accredible will Process Personal Data of Customer and/or Customer’s affiliates (“Customer Personal Data”).
This Accredible DPA regulates the data protection obligations of the Parties when Processing Customer Personal Data under the Cloud Services Agreement and will reasonably ensure that such Processing will only be rendered on behalf of and under the Instructions of Customer and, where applicable, in accordance with the EU Standard Contractual Clauses for Processors pursuant to European Commission Decision of 5 February 2010 (“SCC”) and Art. 28 et seq. GDPR.
In addition to the definition in Clause 1 SCC, the following shall apply:
– “Applicable Law” means all laws, rules and regulations applicable to either party’s performance under this Accredible DPA, including but not limited to those applicable to the Processing of Personal Data. This means, in particular, the CCPA and the GDPR.
– “Business” means the entity which determines the purposes and means of the Processing of the Personal Data of California residents.
– “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and implementing regulations thereto that become effective on or after the effective date of the Cloud Services Agreement.
– "Controller" shall mean the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data of individuals located in the EU, EEA and Switzerland;
– “Data Subject” means the individual to whom the Personal Data relates.
– “EEA" means the member states of the European Union, Iceland, Liechtenstein, and Norway and, for the purposes of this agreement, the United Kingdom and Switzerland.
– "GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data repealing Directive 95/46/EC, and all national implementing laws validly amending the applicable rules for the Processing of Personal Data under the GDPR.
– “Instruction” means any documented instruction, submitted by Customer to Accredible, directing Accredible to perform a specific action with regard to Personal Data, including but not limited to the rectification, erasure or restriction of Processing of Personal Data. Instructions shall initially be specified in the Cloud Services Agreement and may, from time to time thereafter, be amended, supplemented or replaced by Customer by separate written or text form instructions, provided that such instructions still fall within the scope of the Services. Instructions issued for the purpose of complying with statutory claims under the GDPR such as rectification, erasure, restriction or portability of Personal Data fall within the scope of the Services.
– “Personal Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, or is otherwise defined as “personal data,” “personal information,” “personally identifiable information,” or a similar designation under and regulated by Applicable Laws and is made available to Accredible in connection with the providing the Services.
– “Process” or “Processing” means any operation or set of operations which is performed by or on behalf of Accredible as part of the Services 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.
– "Processor" shall mean an entity which Processes Personal Data of individuals located in the EEA on behalf of the Controller.
– “Security Incident” means any actual or reasonably suspected (a) accidental, unauthorized or unlawful loss, destruction or theft of Personal Data; (b) unauthorized or unlawful use, disclosure, alteration, encryption, acquisition of or access to, or other unauthorized Processing of Personal Data; or (c) unauthorized access to, use of, inability to access, or malicious infection of Accredible information systems that reasonably may be expected to compromise the privacy, confidentiality or security of Personal Data.
– “Service Provider” means the entity that Processes Personal Data of California residents on behalf of a Business for a business purpose pursuant to the Cloud Services Agreement.
2.1 This Accredible DPA amends and is an integral part of the Cloud Services Agreement with respect to any Processing of Customer Personal Data provided by Customer or Customer’s affiliates who are beneficiaries under the Cloud Services Agreement or any purchase order based thereon (any such affiliate is hereinafter referred to as: "Affiliate") as amended from time to time by written agreement between both Parties.
2.2 This DPA will apply to the extent that Accredible Processes Personal Data falling within the scope of the GDPR or CCPA on behalf of Customer in the course of providing the Services.
2.3 For purposes of this Accredible DPA, Customer and Accredible agree that Customer, and respectively its Affiliate, is the Controller of Personal Data covered under the GDPR and Accredible is the Processor of Personal Data covered under the GDPR, except when Customer or Affiliate acts as a Processor of Personal Data covered under the GDPR, in which case Accredible is a subprocessor.
2.4 For purposes of this Accredible DPA, Customer and Accredible agree that Customer, and respectively its Affiliate, is the Business with regard to the Processing of Personal Data of California residents, and Accredible is the Service Provider. Accredible certifies that it understands its obligations under this DPA, including the restrictions on Accredible retaining, using, selling or disclosing personal information, and it will comply with them. Accredible certifies that it understands its obligations under this DPA, including the restrictions on Accredible retaining, using, selling or disclosing personal information, and it will adhere to them.
3.1 Any Processing operation involving Personal Data covered by the GDPR shall be subject to the SCC as contained in the Exhibit whereby the SCC shall prevail over any conflicting clauses in the Cloud Services Agreement or the Accredible DPA.
3.2 The Parties agree that the SCC shall be directly binding between Accredible as Data Importer (as defined therein), Customer and each Affiliate as Data Exporter (as defined therein) in relation to the Customer Personal Data provided by Customer or Affiliate.
3.3 To the extent Customer is authorized to enter into this Accredible DPA on behalf of its Affiliates, the respective Affiliate shall have the same rights and obligations as conferred on Customer. Customer in any case is responsible for ensuring that each of the Affiliates is bound by the obligations under this Accredible DPA.
3.4 References to various Articles from the Directive 95/46/EC in the SCC will be treated as references to the relevant and appropriate Articles in the GDPR.
4.1 The subject matter, duration, nature and purpose of the Processing are described in the Cloud Service Agreement, Exhibit, Appendix 1 of the SCC and this Sec.4.
4.2 The types of Personal Data and categories of Data Subjects that may be affected by the Processing are listed in Sec. 2.2 and in Exhibit, Appendix 1.
4.3 The duration of the Processing shall correspond to the duration of this Accredible DPA as set forth in Sec. 10.
5.1 Accredible shall in the course of providing Services, including with regard to transfers of Personal Data to a third country, Process Customer Personal Data only on behalf of and under the documented Instructions of Customer unless required to do so otherwise by Applicable Law, including the law of the European Union or the law of a member state of the European Union (“Member State”); in such a case, Accredible shall inform Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest (the corresponding Clause 5 (a) SCC shall remain unaffected).
5.2 Without limiting the foregoing, Accredible shall not retain, use, sell or disclose Personal Data covered by the CCPA outside of the direct business relationship between the Customer and Accredible, unless otherwise required or permitted by Applicable Law.
5.3 Accredible shall take steps reasonably necessary to ensure that any natural person acting under its authority who has access to Customer Personal Data does not Process such data except on Instructions from Customer, unless otherwise required to do so by Applicable Law.
5.4 Accredible ensures that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and that the obligation will remain after termination of this Accredible DPA.
5.5 Technical and Organizational Data Security Measures
5.5.1 The appropriate technical and organizational data security measures implemented at the date of the signing of this Accredible DPA are specified in Exhibit, Appendix 2. The measures specified in Exhibit, Appendix 2 are subject to technical advancements and development (the corresponding Clause 5 (c) SCC shall remain unaffected).
5.5.2 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 natural persons, Accredible shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, such as those the measures required by Art. 32 GDPR. As appropriate, this may include:
● the pseudonymization and encryption of Personal Data;
● the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services; and
● the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident.
5.5.3 When assessing the appropriate level of security, account shall be taken in particular of the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
5.5.4 If Accredible significantly modifies measures specified in Exhibit, Appendix 2, such modifications have to meet the obligations pursuant to Sec. 5.5.2 and 5.5.3. To the extent required by the GDPR, Accredible shall make available to Customer a description of such measures which enables Customer to assess compliance with Art. 32 GDPR. By notifying, Accredible grants to Customer the opportunity to object to such modifications within four (4) weeks. Customer shall only be entitled to object to any modification in the case that the modification does not meet the requirements pursuant to Sec. 5.5.2 and 5.5.3. If Customer does not object to the modification within the objection period, consent regarding the modifications shall be assumed. In case of an objection, Accredible may suspend the portion of the Service which is affected by the objection of Customer. Customer shall not be entitled to a pro-rata refund of remuneration for the Services, unless Customer can prove that the obligations pursuant to Sec. 5.5.2 and 5.5.3 have not been met.
5.5.5 Accredible shall implement a data protection management procedure applicable to Personal Data covered by the GDPR that complies with the requirements of Art. 32 para 1 lit. d) GDPR, for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures to reasonably ensure the security of the Processing. Accredible will further, by way of regular self-audits, reasonably ensure that the Processing of Customer Personal Data conforms with the provisions as agreed with Customer or to Customer’s Instructions.
5.6 Accredible shall, while taking into account the nature of the Processing, assist Customer through appropriate technical and organizational measures, with the fulfilment of Customer’s obligations to respond to requests for exercising rights of Data Subjects in accordance with Applicable Law, in particular Art. 15 through 18 and 21 GDPR.
5.7 Taking into account the nature of the Processing and the information available to Accredible, Accredible shall assist Customer with ensuring compliance with the obligations pursuant to Art. 33 through 36 GDPR (Data Security Breach Notification, Data Protection Impact Assessment, Consultation with Data Protection Supervisory Authorities).
5.8 Documentation and Audit Rights
5.8.1 Upon request and subject to a non-disclosure agreement, Accredible shall provide to Customer a comprehensive documentation of the technical and organizational data security measures in accordance with industry standards. In addition, Accredible may, in its discretion, provide data protection compliance certifications issued by a commonly accepted certification issuer which has been audited by a data security expert, by a publically certified auditing company or by another customer of Accredible.
5.8.2 If Customer has justifiable reason to believe that Accredible is not complying with the terms and conditions under this Accredible DPA, in particular with the obligation to implement and maintain the agreed technical and organizational data security measures, and only once per year (unless there are specific indications that require a more frequent inspection), Customer is, subject to a non-disclosure agreement, entitled to audit Accredible (the corresponding Clause 5 (f) SCC shall remain unaffected). This audit right can be exercised by (i) requesting additional information, (ii) accessing the databases which Process Customer Personal Data or (iii) by inspecting Accredible's working premises whereby in each case no access to Personal Data of other customers or Accredible’s confidential information will be granted. Alternatively, Customer may also engage third party auditors to perform such tasks on its behalf in accordance with Sec. 5.8.4. The costs associated with such audits and/or for providing additional information shall be borne by Customer unless such audit reveals Accredible’s material breach with this Accredible DPA.
5.8.3 If Customer intends to conduct an audit at Accredible’s working premises, Customer shall give reasonable notice to Accredible and agree with Accredible on the time and duration of the audit. In the case of a special legitimate interest, such audit can also be conducted without prior notice. Inspections shall be made during regular business hours and in such a way that business operations are not disturbed. At least one employee of Accredible may accompany the auditors at any time. Accredible may memorialize the results of the audit which shall be confirmed by Customer.
5.8.4 Customer may not appoint a third party as auditor who (i) Accredible reasonably considers to be in a competitive relationship to Accredible or (ii) is, as provided in Clause 5 (f) SCC, not sufficiently qualified to conduct such an audit, or (iii) is not independent. Any such third-party auditor shall only be engaged if the auditor is bound by a non-disclosure agreement in favor of Accredible prior to conducting any audit or is bound by statutory confidentiality obligations.
5.9 Notification Duties
5.9.1 Accredible shall inform Customer without undue delay in text form (e.g., letter, fax or email, “Text Form”) of the events listed in Clause 5 (d) SCC and the following events:
● Requests from third parties including such from a data protection supervisory authority regarding Customer Personal Data, in which case it is permitted to inform the third party of the name of Customer and the fact that it has forwarded the request to Customer;
● Threats to Customer Personal Data in possession of Accredible by garnishment, confiscation, insolvency and settlement proceedings or other incidents or measures by third parties. In such case, Accredible shall immediately inform the respective responsible person/entity that Customer holds the sovereignty and ownership of the Personal Data.
The corresponding Clauses 5 (b) and (d) SCC shall remain unaffected.
5.9.2 Accredible shall notify Customer without undue delay after becoming aware of a Security Incident. Such notice will, if possible, include the following information:
● a description of the nature of the Security Incident including where possible, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned;
● a description of the measures taken or proposed to be taken by Accredible and/or Customer to address the Security Incident, including, where appropriate, measures to mitigate its possible adverse effects; and
● any further information which is available and known to Accredible and (i) that is necessary for Customer to comply with Customer’s notification obligations and (ii) which Customer does not otherwise have access to.
5.9.3 Accredible shall inform Customer immediately if, from its point of view, an Instruction of Customer may lead to a violation Applicable Law. Until Customer either confirms or alternates the Instruction, Accredible may refuse to comply with the Instruction issued.
5.10 Rectification, Erasure, Restriction
5.10.1 If legally required and Customer is unable to perform the applicable task itself, or if provided so in the services description contained in the Cloud Services Agreement, Accredible shall rectify, erase, restrict or transmit Customer Personal Data upon Customer’s request as soon as possible but at the latest within thirty (30) days upon notice. Any erasure of Customer Personal Data pursuant to this Sec. 5.10 shall be executed in such a manner that restoring or recovering such data is rendered reasonably impossible.
5.10.2 At Customer’s request, Accredible shall conduct a data protection-compliant destruction of data media and other material provided by Customer. Alternatively, at the request of Customer, Accredible shall provide the data carriers and other material to Customer or store it on Customer’s behalf.
5.10.3 Unless Applicable Law requires a retention of the Personal Data, Accredible shall, upon completion of the Services in consultation with Customer, either delete or return all Customer Personal Data in its possession to Customer.5.10.4 Without prejudice to the generality of Clause 5(d) of the SCC, if a Data Subject addresses Accredible with claims for access, rectification, erasure, restriction, objection or data portability, Accredible shall refer the Data Subject to Customer.
5.11 Accredible will inform Customer of the name and the official contact details of its data protection officer if Accredible is, by Applicable Law, required to appoint a data protection officer. If Accredible is not required to appoint a data protection officer, Accredible shall – in its own discretion – name a person responsible for dealing with questions relating to Applicable Law and data security in the context of performing this Accredible DPA.
5.12 In the case claims based on Art. 82 GDPR are raised against Customer, Accredible shall reasonably support Customer with its defense to the extent the claim arises in connection with the Processing of Personal Data by Accredible in connection with performing the Services to Customer.
5.13 Accredible will make available to Customer reasonable information necessary to demonstrate compliance with the obligations laid down in Accredible DPA and, if applicable, Art. 28 GDPR.
6.1 Unless otherwise described in Sec. 7.6, any Processing shall take place in the United States.
6.2 Customer shall provide all Instructions pursuant to this Accredible DPA to Accredible in Text Form or verbally (the corresponding Clause 4 (b) SCC shall remain unaffected). Verbal Instructions shall be confirmed immediately in Text Form thereafter.
6.3 Customer shall notify Accredible in Text Form of the names of the persons who are entitled to issue Instructions to Accredible. Any consequential costs incurred resulting from Customer’s failure to comply with the preceding sentence shall be borne by Customer. In any event, the managing directors and personnel/human resource management of Customer are entitled to issue Instructions.
6.4 Customer shall inform Accredible immediately if Processing by Accredible might lead to a violation of Applicable Law.
6.5 In the case claims based on Art. 82 GDPR are raised against Accredible, Customer shall reasonably support Accredible with its defense to the extent the claim arises in connection with the Processing of Personal Data by Accredible in connection with performing the Services to Customer or Affiliate.
6.6 Customer shall name a person responsible for dealing with questions relating to Applicable Law and data security in the context of performing this Accredible DPA.
7.1 Accredible may engage third parties to perform the agreed Processing activities under this Accredible DPA (“Subcontractor”) subject to the requirements pursuant to this Sec.7.
7.2 Any Subcontractor with access to Personal Data covered by the GDPR shall be obliged before initiating the Processing, to commit itself in writing for the benefit of Customer and its Affiliates to comply with the same data protection obligations as the ones under this Accredible DPA or legal act within the meaning of Art. 28 para 3, 4 and 6 GDPR unless explicitly agreed otherwise. The agreement with the Subcontractor must provide at least the level of data protection required by this Accredible DPA. Where the Subcontractor fails to fulfil its data protection obligations, Accredible shall remain fully liable to Customer for the performance of the Subcontractor’s obligations (the corresponding Clause 11 SCC shall remain unaffected).
7.3 Any Subcontractor must in particular agree to comply with the agreed technical and organizational security measures in accordance with Sec. 5.5.2 and 5.5.3 herein and provide Accredible, with a list of the implemented technical and organizational measures, which upon request by Customer will also be made available to Customer. Subcontractor’s measures may differ from the ones agreed between Customer and Accredible but shall not fall below the level of data security as provided by the measures of Accredible.
7.4 Where a Subcontractor refuses to be bound by the same data protection obligations as the ones under this Accredible DPA, Customer may consent thereto, whereby such consent shall not be unreasonably withheld.
7.5 Accredible will inform Customer in Text Form of any intended engagement of a Subcontractor with access to Personal Data covered by the GDPR. Alternatively, Accredible may provide a website or provide another notice that lists all Subcontractors to access to Personal Data of its Customer covered by the GDPR as well as the limited or ancillary services they provide. At least two (2) weeks before authorizing any new Subcontractor to access such Personal Data, Accredible will notify Customer thereof and, if applicable, update its website. By notifying, Accredible grants to Customer the opportunity to object to such change within ten (10) days. If Customer does not object to the engagement within the objection period, consent regarding the engagement shall be assumed. Upon Customer’s request, Accredible will provide all information necessary to demonstrate that the Subcontractor will meet all requirements pursuant to Sec. 7.2 and 7.3. In the case Customer objects to the subprocessing, Accredible can choose to either not engage the Subcontractor or to terminate the Accredible DPA with two (2) months prior written notice. Until the termination of the Cloud Services Agreement, Accredible may suspend the portion of the Services which is affected by the objection of Customer. Customer shall not be entitled to a pro-rata refund of the remuneration for the Services, unless the objection is based on justified reasons of incompliance with applicable data protection law.
7.6 Subject to Accredible complying with the obligations under Clause 11 SCC and Sec. 7.27.2 through 7.4, Customer herewith agrees also on behalf of its Affiliates to the following Subcontractors:
● Accredible Ltd., 9th Floor, 107 Cheapside, London, EC2V 6DN, for development of cloud services.
● AWS Web Services, Inc., 410 Terry Avenue North, Seattle WA 98109-5210, USA, for hosting Data Importer’s cloud database and cloud services, the location of the data services is restricted to the USA.
● HubSpot, Inc., 25 First Street, 2nd Floor, Cambridge, MA 02141 USA
● Google Inc., 1600 Amphitheatre Parkway, Mountain View, California 94043, USA, Cloud for cloud back-ups;7.7 Upon Customer’s request, Accredible shall provide Customer with information on relevant data protection obligations of Subcontractor, which shall include, but not be limited to, granting necessary access to the relevant contractual documents.7.8 Accredible shall audit its Subcontractor on a regular basis and will, upon Customer’s request, confirm their compliance with data protection law and the obligations set upon the Subcontractor according to the data processing agreement concluded with them. Only in the case of justified reasons, Customer shall issue Instructions to Accredible to conduct further audits that Accredible will conduct to the extent permissible.
8.1 To the extent applicable, Customer and Accredible shall be each liable for damages of affected data subjects according to Art. 82 GDPR (external liability).
8.2 Either Party shall be entitled to claim back from the other Party, Accredible or Customer, that part of the compensation corresponding to the other Party’s part of responsibility for the damage (internal liability).
8.3 As regards the internal liability and without any effect as regards the external liability towards data subjects, the Parties agree that notwithstanding anything contained hereunder, when providing the Services, Accredible’s liability for breach of any terms and conditions under this Accredible DPA shall be subject to the liability limitations agreed in the Cloud Services Agreement
8.4 No Affiliate shall become beneficiary of the Accredible DPA without being bound by this Accredible DPA and without accepting this liability limitation
8.5 Customer will indemnify Accredible against any losses that exceed the liability limitations in the liability in the Cloud Service Agreement suffered by Accredible in connection with any claims of Affiliates or Data Subjects who claim rights based on alleged violation of the GDPR or this Accredible DPA including the SCC.
If Customer’s Instructions lead to a change from or increase of the agreed Services or in the case of Accredible’s compliance with its obligations pursuant to Sec. 7, 5.10 or 5.12 to assist Customer with Customer’s own statutory obligations, Accredible is entitled to charge reasonable fees for such tasks which are based on the prices agreed for rendering the Services and/or notified to Customer in advance.
The duration of this Accredible DPA coincides with the duration of the Cloud Services Agreement. It commences and terminates with the provision of the Services under the Cloud Services Agreement, unless otherwise stipulated in the provisions of this Accredible DPA.
Accredible may modify or supplement this Accredible DPA, with notice to Customer, (i) if required to do so by a supervisory authority or other government or regulatory entity, (ii) if necessary to comply with Applicable Law, (iii) to implement standard contractual clauses laid down by the European Commission or (iv) to adhere to an approved code of conduct or certification mechanism approved or certified pursuant to Articles 40, 42 and 43 of the GDPR. Customer shall notify Accredible if it does not agree to a modification, in which case Accredible may terminate this this Accredible DPA and the Master Agreement with two (2) months' prior written notice, whereby in the case of an objection not based on incompliance of the modifications with applicable data protection law, Accredible shall remain entitled to claim its agreed remuneration until the term end.
Any side agreements to this Accredible DPA as well as changes and amendments of this Accredible DPA or the Services hereunder, including this Sec. 12, shall be in writing.
This Accredible DPA is governed by, and shall be interpreted in accordance with, the laws of the place of establishment of Customer, to the extent not otherwise provided by Clause 7 SCC.
14.1 With respect to any issues arising of or in connection with the Processing of Personal Data the Accredible DPA shall prevail over all other agreements between the Parties.
14.2 In the event a clause under the Cloud Services Agreement has been found to violate the GDPR or any other Applicable Laws, the Parties will mutually agree on modifications to the Cloud Services Agreement to the extent necessary to ensure data privacy-law compliant Processing.
Last updated: 6th March 2020
Standard Contractual Clauses for 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 and each of the EU Customer Affiliates are hereinafter referred to as the "Data Exporter" with respect to the personal data provided by that Data Exporter.
Accredible as defined in the Accredible DPA is hereinafter referred to as the "Data Importer".
The Data Exporter(s) and the Data Importer, each a “party” and collectively “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 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 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 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 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 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 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;
(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 (This requirement may be satisfied by the subprocessor co-signing the contract entered into between the Data Exporter and the Data Importer which is based on the terms and conditions of this Agreement.). 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.
This Appendix forms part of the Clauses and must be completed and signed by the parties. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data Exporter
The Data Exporters are companies that wish to issue, administer and monitor certificates which they provide to their employees and other persons.
Data Importer
The Data Importer is a software company that offers client cloud based services for the design, issuance, administration and monitoring of digital certificates using Accredible’s online platform.
Data subjects
The Data Exporter’s end user such as employees or other data subjects for which the Data Exporter wants to create certificates/accreditations.
Categories of data
Names, email, location, information on individual performance for which a certificate/accreditation shall be granted.
Special categories of data (if appropriate)
None.
Processing operations
The cloud services provided by Data Importer are described in the Cloud Services Agreements. In principle, Data Importer permits Customer and/or Affiliates to design, issue, administer and monitor digital certificates using Accredible’s online platform. In addition, Accredible may use end user personal data to reach out to such end users for the purpose of notifying them of changes/updates of their certificates including password management and technical support.
This Appendix forms part of the Clauses and must be completed and signed by the parties
Description of the technical and organizational security measures implemented by the Data Importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Subcontractors will be bound to adhere to similar but not identical organizational security measures which shall not fall below the level of data security as agreed herein. Any organizational security measures are subject to change as technical standards evolve and such changes can be implemented by Data Importer. If so requested, Data Importer will provide Data Exporter with a description of the then current measures.
Technical and organizational measures in place by EdInvent Inc.
1. Access control to premises and facilities:
Physical access to the building is controlled.
Physical access to the office space is monitored, logged and is restricted to individuals who require such access to perform their job responsibilities. Management approval is required before access is granted.Access to office space requires a key or electronic code and alarm systems are present to prevent unauthorized access.
No on-site data centres are used and thus protected areas don’t exist for the organization.
2. Access control to systems:
Users are required to have a unique account to utilize systems in order to distinguish one user from another and establish accountability. Access to generic accounts is restricted to authorized individuals on an as needed basis through the use of a password management tool. A policy is in place to ensure that users make use of the password management tool to produce and utilize secure passwords. Passwords are in place for all users on all platforms, where technically feasible or practical. Passwords must adhere to strict requirements which are documented in the Password Requirements and Guidelines document posted on the Intranet and referred to in the Access Control Policy.
Administrator-level privileges for servers are restricted to authorized personnel who have been vetted and have the necessary experience to responsibly access resources.
Terminals and workstations are protected by time-out facilities which are activated after a time period of inactivity has elapsed.
Hard drives of mobile devices like notebooks etc. are encrypted. Encryption is enforced for any removable media like CD/DVD or USB mass storage devices. Mobile devices all require authentication to access and have remote-wipe enabled.
3. Access control to data:
All requests for application or system access, including remote (dial-up) access, are submitted through the IT Access Request Database. The functional manager, data owner, or other authorized approver must approve each request. Documentation is maintained.
Security Administration generates user access lists for in-scope applications, databases, and related UNIX and Windows servers with the associated access rights for the designated business owners/IT managers. The business owners/IT managers are responsible for reviewing and approving these lists at least annually.
4. Disclosure Control:
All electronic data transfer among all workplaces and data centres makes use of the corporate VPN network which is encrypted.
To access the network for business reasons from external locations, business associates may use the corporate SSL VPN. To obtain access to VPN the user must complete a VPN ID request and use a corporate asset to access VPN which is configured with antivirus, antispyware and personal firewall software.
File transfers outside of the company consist of an encrypted package sent via email, regular FTP or by using SFTP. TLS is used for email with clients in situations where the client is able to use TLS also.
Backups are encrypted and transported over SSL to remote data centres.
5. Input Control:
Logging is enabled on applications, servers and databases. Some application systems produce transaction logging.
6. Job control:
Under this agreement, personal data are processed by the Data Importer only according to the Data Exporter’s instructions. Internally, the Data Importer ensures by provisions in work contracts, guidelines and statements of work that the Data Exporter’s instructions are being met.
The Data Exporter is entitled to inspect the Data Importer’s adherence to its instructions as per the provisions of this agreement.
7. Availability Control:
The anti-spam gateway, email environment and individual desktop and servers all run anti-virus software. Virus signature files residing on both desktops and servers are updated automatically at least once per day. Programs and data files that are on the network and at risk of infection from viruses are scanned as they are accessed. Virus alerts are reviewed and appropriate actions are taken to resolve issues identified. Identified issues that require action are logged in a Service Desk ticket.
Data centres are backed up on a daily basis and supply redundancy where possible. Backup is performed according to the data backup policy and disaster recovery plan is in place and tested as required.
8. Separation Control:
Systems and applications are processed in different independent environments (DEV/QA/PROD). This ensures the segregation of functions.
Access profiles (e.g. roles and security groups) are used for granting privileges whenever possible. Naming conventions for these roles and groups reflect privilege levels.
Appropriate segregation of duties shall be incorporated in access rights management processes, e.g., Users cannot change their own privileges or approve their own requests. The auditing and review of IDs to ensure compliance must be run on a scheduled basis.
Multi-user application systems are designed with security controls to ensure that:
• Appropriate authorization is required to access, modify, save or delete information
• Secure or administrative functions are only displayed or documented to authorized IT users
• System design and development includes appropriate controls to ensure security and prevent system compromise
• Application security controls are a supplement, not replacement, for available systems, database and operating system controls
Security Administration is restricted to the Security Admin group.
9. Media Control:
Data exporter shall retain title as to any carrier media provided to Data Importer as well as any copies or reproductions thereof. Data Importer shall store such media safely and protect them against unauthorised access by third parties. Data Importer shall, upon data exporter’s request, provide to Data Exporter all information on Data Exporter’s personal data. Data Importer shall be obliged to delete any test and scrap material on the instructions issued by Data Exporter on a case-by-case basis, latest by the end of the commissioned data processing under these standard contractual clauses. At the request of the Data Exporter, Data Importer shall give such material to Data Exporter or store it on Data Exporter’s behalf.
10. Data Importer Self-Audit:
Data Importer will by himself regularly audit and assess compliance with the obligations set out in this Appendix.
