Terms of Service

Paradigm REACH Terms of Service

BY CLICKING ON THE “ACCEPT" BUTTON, YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE REACH TERMS OF SERVICE (“AGREEMENT”). CUSTOMER’S CONTINUED USE OF ANY SERVICES (AS DEFINED BELOW) PROVIDED BY PARADIGM STRATEGY INC. (“PARADIGM”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" BUTTON, AND THE SALES PROCESS AND CUSTOMER’S ACCESS TO THE SERVICES WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.

1. SERVICES AND SUPPORT

1.1 Subject to the terms and conditions of this Agreement, Paradigm will provide Customer with access to its REACH web application and REACH online training content regarding diversity, equity and inclusion, in each case, as selected and paid for by Customer (collectively, “Services”). All Services will be provided through the Internet, solely for Customer’s internal use (and the internal use of Customer’s end-users). Customer’s access to the Services is expressly limited to the number of end-users for whom Customer has paid (as further described on Paradigm’s website or via the Services), and Customer agrees not to exceed such access and/or end-user account limits. The software underlying the Services will be hosted on a server under the control or direction of Paradigm. The Services are subject to modification from time to time at Paradigm’s sole discretion, for any purpose deemed appropriate by Paradigm.

1.2 Subject to the terms and conditions hereof, Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Paradigm.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software provided by Paradigm, documentation or data output from the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); copy, record, modify, translate, or create derivative works based on the Services, software provided by Paradigm, or any data output from the Services; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; use the Services or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Paradigm, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, malware, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).

2.2 Customer will reasonably cooperate with Paradigm in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Paradigm may reasonably request, to assist in its provision of the Services. Customer will also cooperate with Paradigm in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Each end-user account and login credential provided by Paradigm with respect to the Services may only be used by one individual end-user of Customer, and may not be shared or transferred without Paradigm’s prior written consent in each instance. Each Customer end-user of the Services must (a) be a current employee, consultant, contractor or agent of Customer using the Services only on Customer’s behalf and for Customer’s direct benefit, and (b) be bound by obligations that are no less protective of the Services than the terms set forth in this Agreement. Customer will be directly responsible to Paradigm with respect to all actions and/or inactions of its end-users of the Services.

2.3 Customer hereby agrees to defend, indemnify and hold Paradigm harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties in connection with any claim or action that alleges any (i) infringement, violation or misappropriation of any intellectual property or proprietary right(s) by any Content (as defined below), including, without limitation, in connection with distribution and/or analysis thereof through the Services, and/or (ii) violation of applicable law(s) and/or regulations) by Customer (including, without limitation, employment, labor, and/or discrimination law(s) and/or regulation(s)); provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.

2.4 Paradigm hereby agrees to defend, indemnify and hold Customer harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties as a result of any claim or action that alleges the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Services (excluding all Content); provided that Paradigm is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to portions or components of the Services provided by Paradigm (i)not created by or on behalf of Paradigm, (ii)resulting in whole or in part in accordance from Customer specifications, (iii)that are modified after delivery by Paradigm, (iv)combined with other products, processes or materials where the alleged infringement arises out of such combination, (v)where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi)where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, the Services are Paradigm’s Proprietary Information, and the Content provided by Customer is Customer’s Proprietary Information.

3.2 The Receiving Party agrees: (i)except as expressly provided herein, not to divulge to any third party any such Proprietary Information, (ii) not to use any such Proprietary Information for any purpose other than as expressly set forth pursuant to this Agreement, (iii) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Proprietary Information as this Agreement), and (iv)to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a)is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b)was rightfully in its possession or known by it without restriction, prior to receipt from the Disclosing Party, or (c)was rightfully disclosed to it without restriction by a third party, or (d)was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, Paradigm may collect data with respect to, use such data to develop, implement, execute and/or improve the Services, and report on the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services (including without limitation, the Content); provided that Paradigm will not identify (or disclose any data that could reasonably be used to identify) Customer or any individual without the prior written consent of the Customer and/or the individual.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Except as expressly set forth herein, Paradigm alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services and related software and any suggestions, enhancement requests, feedback, and/or recommendations provided by Customer or any of its end-users relating to the Services and/or the software provided by Paradigm, which are hereby assigned to Paradigm. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or related software, or any intellectual property rights.

4.2 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer and/or its end-users (“Content”) and the intellectual property rights with respect to that Content. If Paradigm receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), Paradigm may (but is not required to) suspend activity hereunder with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Paradigm a worldwide, non-transferable, non-sublicensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content solely in connection with Paradigm’s performance of the Services. Paradigm is permitted to disclose that Customer is one of its customers in the ordinary course of its sales cycle. Subject to Customer’s prior written consent, Paradigm is permitted to place Customer’s name and logo on its website and marketing materials for this purpose.

5. PAYMENT OF FEES

5.1 Customer shall pay all applicable fees, as described by Paradigm via its website or the Services, in connection with the specific Services selected by Customer (collectively, “Fees”) without any right of set-off or deduction. All payments will be made in accordance with the payment schedule and the method of payment set forth on Paradigm’s website or via the Services. All Fees paid hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.

5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Paradigm's net income) unless Customer has provided Paradigm with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Paradigm on account thereof.

6. TERMINATION

6.1 Unless earlier terminated in accordance with this Section 6 or Section 7, this Agreement, including Customer’s subscription to the Services, shall continue for one (1) calendar year from the date of Customer’s acceptance of this Agreement (the “Initial Term”). After the Initial Term, this Agreement, including Customer’s subscription to the Services, will automatically renew for successive one-year periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless and until either party provides the other with at least thirty (30) days’ written notice of its intention not to renew prior to the end of the then-current Term.

6.2 Either party hereto may terminate this Agreement upon thirty (30) calendar days’ prior written notice in the event of any material breach of this Agreement by the other party hereto (including, without limitation, by Paradigm in the event of any breach by Customer of Section 2.2 and/or failure to pay any amounts when due hereunder) that is not cured during such notice period.

6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.

6.4 Customer’s access to the Services, and any licenses granted hereunder to Customer, shall terminate upon any termination of this Agreement. Subject to the foregoing, the following Sections will survive any termination of this Agreement: 2.1, 2.3, 2.4, 3 through 6, 9 through 12, and any accrued rights to payment.

7. STATUTORY RIGHT OF WITHDRAWAL (EEA AND UK CONSUMERS ONLY)

7.1 If you are a consumer in the European Economic Area or the United Kingdom you have the right to withdraw from the contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day you entered into the subscription contract.

7.2 To exercise the right of withdrawal, you must inform us (Paradigm Strategy Inc., 300 Brannan St, Ste 610, San Francisco, CA 94107, cancellations@paradigmiq.com) of your decision to withdraw from the contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the model withdrawal form attached to this Agreement as Annex, but it is not obligatory.

7.3 To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

7.4 Effects of Withdrawal: If you withdrawal from the contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from the contract, in comparison with the full coverage of the contract.

8. GENERAL WARRANTIES

Each party represents and warrants to the other party that (a) it has the legal right and power to enter into this Agreement, (b) the performance of its obligations hereunder will not violate or conflict with any agreements, contracts or other arrangements to which it is a party, and (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.

9. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED BY PARADIGM IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. PARADIGM HEREBY DISCLAIMS ANY AND ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PARADIGM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. PARADIGM DOES NOT WARRANT THAT THE SERVICES, DATA PROVIDED, AND/OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO BREACH BY CUSTOMER OF SECTION 3, IN NO EVENT WILL EITHER PARTY HERETO OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

EXCEPT WITH RESPECT TO BREACH BY CUSTOMER OF SECTION 3, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WITH RESPECT TO THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) FEES PAID TO PARADIGM HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, OR (B) $10,000. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11. U.S. GOVERNMENT MATTERS

Notwithstanding anything to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Paradigm are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

12. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Paradigm’s prior written consent. Paradigm may transfer and/or assign this Agreement to a successor in connection with a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties hereto, and supersedes and cancels all previous written and oral agreements, communications and other understandings between the parties hereto relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Paradigm will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

REACH DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) supplements and it part of the REACH Terms of Service (“Terms”), when the GDPR and/or the CCPA applies to your use of Paradigm’s REACH Services. If there is a conflict between the terms of this DPA and the provisions of the Terms, the terms of this DPA prevail with regard to the specific subject matter of this DPA. Unless otherwise defined in this DPA or in the Terms, all capitalized terms used in this DPA will have the meanings given to them in Section 1 of this DPA. In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Terms.  This DPA was last updated March 22, 2021.  Paradigm reserves the right to periodically modify this DPA upon written notice to Company, and such modification will automatically become effective in the next service term.

  1. Definitions
    1. “CCPA” means the California Consumer Privacy Act of 2018, as amended.
    2. “Company” means the entity that agreed to the Terms and that determines the purposes and means of Processing of Personal Data.
    3. “Company Data” means all Personal Data which Company has Paradigm Process as part of its provision of the Services to Company.
    4. “Controller” means the party that determines the purposes and means of the Processing of Personal Data; this definition includes a “Business” as defined in the CCPA.
    5. “Covered Services” or “Services” means the services that are ordered by the Company from Paradigm under the Terms involving the Processing of Personal Data on behalf of the Company.
    6. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Company Data transmitted, stored or otherwise Processed.
    7. “Data Protection Laws” means (a) all data protection laws and regulations applicable to the European Economic Area and Switzerland, including (i) the General Data Protection Regulation 2016/679 (“GDPR”), and EU Member State laws supplementing the GDPR; the EU Directive 2002/58/EC (“e-Privacy Directive”), as amended or replaced from time to time; (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); (b) the UK Data Protection Act of 2018, and the UK GDPR (collectively “UK Data Protection Laws”); and (c) the CCPA. “EU Data Protection Law” shall mean sections (a) and (b) of the Data Protection Laws definition noted above.
    8. “Permitted Purpose” means Paradigm’s use of the Company Data to the extent necessary for provision of the Services to the Company.
    9. “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”), directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
    10. “Processor” means the party which Processes Personal Data on behalf of the Controller; this definition includes a “Service Provider” as defined in the CCPA.
    11. “Process, Processed or Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    12. “Standard Contractual Clauses” means the agreement pursuant to the European Commission decision (C(2010)593) of 5 February 2010 on standard contractual clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC.
    13. “Subprocessor” means any Processor engaged by Paradigm to Process Personal Data to provide the Services to the Company.
    14. “Terms” means the REACH Terms of Service entered into between Paradigm and Company under which Covered Services are provided by Paradigm to Company.
    15. Terms such as “Data Subject”, “Controller”, “Sell”, “Business”, “Deidentified Information”, and “Supervisory Authority” shall have the meaning ascribed to them in the Data Protection Law applicable.
  2. Details of Processing Activities
    1. The details of Processing are as follows:
      1. Subject Matter.  Paradigm’s provision of Services to the Company.
      2. Purpose.  Paradigm will Process Company Data for the purpose of providing the Services as described in the Terms. 
      3. Duration. The date upon which Processing is no longer necessary for the purposes of either Party performing its obligations under the Terms. 
      4. Type of Company Data. Company Data may include name, email address, and company name.
      5. Categories of Data Subjects. The Data Subjects may include Company’s employees.
    2. Roles of the Parties.
      1. The Parties acknowledge and agree that (a) If EU Data Protection Law applies to Paradigm’s processing of Company Data, the parties acknowledge and agree that with regard to the processing of Company Data,  Paradigm will Process the Company Data in the capacity of a Processor and that Company will be the Controller of the Company Data. When Company is acting as a processor of Company Data, Paradigm is a sub-processor. Company will identify and inform Paradigm of other controllers, if any, prior to providing their Company Data to Paradigm.
      2. To the extent Company is a Business under the CCPA, Paradigm will act as a “service provider” in its performance of its obligations under the Terms. Paradigm will not retain, use, or disclose any “personal information” included in the Company Data for any purpose other than providing the Services under the Terms, or as otherwise permitted by the CCPA. 
    3. Company Instructions. The Parties agree this DPA and the Terms constitute Company’s documented instructions regarding Paradigm’s processing of Company Data. Paradigm will process Company Data only in accordance with these documented instructions.
    4. Compliance with Laws. Each Party agrees to comply with all applicable laws, rules and regulations in its performance under this DPA, including the GDPR.
  3. Company’s Obligations
    1. Instructions. Company warrants that (i) the instructions it provides to Paradigm pursuant to this DPA and the Terms comply with the Data Protection Laws. and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for Paradigm to process Company Data for the purposes described in the Terms. Company shall have sole responsibility for the accuracy, quality, and legality of Company Data and the means by which Company acquired the Company Data. Company  specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.
    2. Data Subject and Supervisory Authority Requests. Company shall be responsible for communications and leading any efforts to comply with all requests made by Data Subjects under Data Protection Laws and all communications from Supervisory Authorities that relate to EEA Personal Data.
  4. Paradigm’s Obligations
    1. Scope of Processing. Paradigm will Process the Company Data on documented instructions from Company in such manner as is necessary for the provision of Services under the Terms, except as may be required to comply with any legal obligation to which Paradigm is subject.
    2. Restrictions on Retention, Use, or Disclosure of Company Data. Paradigm agrees that it will not Sell, share or transfer Company Data to any third party in exchange for money or other valuable consideration. Paradigm agrees not to use, or disclose Company Data for any purpose other than for the specific purpose of performing the Services described in the Terms. For the avoidance of doubt, this prohibition includes Paradigm retaining, using, or disclosing Personal Data for any commercial purpose other than providing the Services specified in the Terms. The parties agrees that Paradigm may convert Company Data into Deidentified Information, which it may use only for statistical analysis, business reporting, and marketing purposes.
    3. Data Subject and Supervisory Authority Requests. If Paradigm receives a request from a Data Subject or Supervisory Authority regarding Company Data, Paradigm will advise the Data Subject or Supervisory Authority to contact Company directly. Taking into account the nature of the Processing and to the extent reasonably possible, Paradigm shall provide Company with commercially reasonable cooperation and assistance in relation to handling a Data Subject’s request for access to that person’s Personal Data, to the extent that Paradigm is legally permitted to do so.
    4. Retention. Paradigm will retain Company Data only for as long as the Company deems it necessary for the Permitted Purpose, or as required by applicable laws. At the termination of this DPA, or upon Company’s written request, Paradigm will either destroy or return the Company Data to the Company, unless legal obligations require storage of the Company Data by Paradigm. 
    5. Disclosure to Third Parties. Except as expressly provided in this DPA, Paradigm will not disclose Company Data to any third party without Company’s consent. If requested or required by a competent governmental authority to disclose the Company Data, to the extent legally permissible and practicable, Paradigm will provide Company with sufficient prior written notice in order to permit Company the opportunity to oppose any such disclosure.
    6. Confidentiality. Paradigm will restrict access to the Company Data to its personnel who need access to meet Paradigm’s obligations under the Terms. Paradigm will ensure that all such personnel and Subprocessors are informed of the confidential nature of the Company Data and have undertaken training on how to handle such data. Paradigm imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
    7. Data Protection Impact Assessment. Paradigm will provide reasonable assistance to Company upon request needed for Company to fulfil Company’s obligation under the Data Protection Laws to carry out a data protection impact assessment related to Company’s use of the Services, to the extent Company does not otherwise have access to the relevant information, and to the extent such information is available to Paradigm.
    8. Security. Paradigm will keep Company Data confidential and implement and maintain administrative, physical, technical and organizational safeguards for the security (including protection against accidental or unlawful loss, destruction, alteration, damage, unauthorized disclosure of, or access to, Company Data transmitted, stored or otherwise Processed), confidentiality and integrity of Company Data.
      • Access Control of Processing Areas. Processes to prevent unauthorized persons from gaining access to the Paradigm data processing equipment (namely telephones, database and application servers and related hardware) where the Company Data are processed or used, to include: establishing security areas and clear protocols; protection and restriction of access paths; securing the data processing equipment and personal computers; establishing access authorization for employees and third parties, including respective authorization; all access to the data centers where Company Data are hosted is logged, monitored, and tracked; and the data centers where Company Data are hosted is secured by a security alarm system, and other appropriate security measures.
      • Access Control to Data Processing Systems. Processes to prevent Paradigm data processing systems from being used by unauthorized persons, to include: identification of the terminal and/or the terminal user to the data processor systems; two-step authentication & SSO for secure access to data processor systems; automatic time-out of user terminal if left idle, identification and password required to reopen; regular examination of security risks by internal personnel and qualified third-parties; issuing and safeguarding of identification codes; password complexity requirements (minimum length, expiry of passwords, etc.); and protection against external access by means of firewall and network access controls.
      • Access Control to Use Specific Areas of Data Processing Systems. Measures to ensure that persons entitled to use Paradigm data processing systems are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that Company Data cannot be read, copied or modified or removed without authorization, to include by: implementing binding employee policies and providing training in respect of each employee’s access rights to the Company Data; assignment of unique user identifiers with permissions appropriate to the role; effective and measured disciplinary action against individuals who access Personal Data without authorization; release of data to only authorized persons; and policies controlling the retention of back-up copies.
      • Transmission Control. Procedures to prevent Company Data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media and to ensure that it is possible to check and establish to which bodies the transfer of Company Data by means of data transmission facilities is envisaged, to include: use of firewall and encryption technologies to protect the gateways and pipelines through which the data travels; implementation of encrypted connections to safeguard the connection to Paradigm systems; constant monitoring of infrastructure (e.g. ICMP-Ping at network level, disk space examination at system level, successful delivery of specified test pages at application level); and monitoring of the completeness and correctness of the transfer of data.
      • Input Control. Measures to ensure that it is possible to check and establish whether and by whom Company Data has been input into data processing systems or removed, to include: of the authorized personnel; protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data; segregation and protection of stored data via database schemas and logical access controls; utilization of user codes (passwords); proof established within data importer’s organization of the input authorization; and providing that entries to data processing facilities (the rooms housing the computer hardware and related equipment) are capable of being locked.
      • Availability Control. Measures to ensure that Company Data are protected from accidental destruction or loss, to include: automatic failover between sites; infrastructure redundancy; and regular backups performed on database servers.
      • Segregation of Processing. Procedures to ensure that data collected for different purposes can be processed separately, to include: separating data through application security for the appropriate users; storing data, at the database level, in different tables, separated by the module or function they support; and designing interfaces, batch processes and reports for only specific purposes and functions, so data collected for specific purposes is processed separately.
  5. Contracting with Subprocessors
    1. Authorized Subprocessors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees Paradigm may engage new Sub-processors as described in Section 5.
    2. New Subprocessors. Before Paradigm engages any new Subprocessor to carry out processing activities on Company Data on behalf of Company, Paradigm will provide notice of the new Subprocessor. If the Company has a reasonable objection to any new or replacement Subprocessor, it shall notify Paradigm of such objections in writing within seven (7) days of the notification and the parties will seek to resolve the matter in good faith. Paradigm will use reasonable efforts to make a change in the Service or recommend a commercially reasonable change to avoid processing by such Subprocessor.
    3. Subprocessor Obligations. Paradigm will enter into a written agreement with each Subprocessor and, to the extent that the Subprocessor is performing the same Processing services that are being provided by Paradigm under this DPA, Paradigm will impose on the Subprocessor contractual obligations no less protective than those in this DPA with respect to the protection of Company Data to the extent applicable to the nature of the Services provided by such Subprocessor.
    4. Paradigm will remain liable for any acts and omissions of its Subprocessors that cause Paradigm to breach any of Paradigm’s obligations under this DPA.
  6. Information Obligations and Incident Management
    1. Data Breach. Paradigm shall, to the extent permitted by law, notify Company of any Data Breach involving Company Data without undue delay, but no later than 72 hours after becoming aware of any Data Breach. Paradigm will use reasonable efforts to investigate the Data Breach and take any actions that are reasonably necessary to mitigate damage, as required by law and as appropriate under the circumstances.
    2. Coordination. Paradigm will reasonably assist Company in fulfilling its obligations to notify Data Subjects and the relevant authorities in relation to a Data Breach, provided that nothing in this section shall prevent either Party from complying with its obligations under Data Protection Laws. The parties agree to coordinate in good faith on developing the content of any related public statements.
    3. Caused by Company. The obligations in this section shall not apply to Data Breaches that are caused by the Company..
  7. International Transfers
    1. Paradigm Transfers. Company acknowledges that Paradigm may, without Company prior written consent, transfer the Company Data subject to the EU Data Protection Laws to a foreign jurisdiction as necessary to provide the Services as set forth in the Agreement provided such transfer is either (i) to a country or territory which has been formally recognized by the European Commission as affording the Company Data an adequate level of protection or (ii) the transfer is otherwise safeguarded by mechanisms, such as Standard Contractual Clauses and other certification instruments, recognized and approved by the European Commission from time to time.
    2. Standard Contractual Clauses. The parties agree the Standard Contractual Clauses (attached as Annex 1) will apply to Company Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing as adequate level of protection for Personal Data (as described by the GDPR).
      1. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Company acknowledges and expressly agrees Paradigm may engage new Subprocessors as described in Section 5 of this DPA.
      2. The parties agree the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out as described in Section 8 of this DPA.
      3. The parties agree that the certification of deletion of Company Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Paradigm to Company only upon Company’s request.
      4. The parties agree that the copies of the Subprocessor agreements that must be provided by Paradigm to Company pursuant to Clause 5(j) of the SCC may have all commercial information, or clauses unrelated to the SCC or their equivalent, removed by Paradigm before providing, and the copies will be provided in manner determined by Paradigm at its discretion and only upon request by Company.
      5. In the event of any conflict or inconsistency between this DPA and the SCC, the SCC shall prevail.
    3. UK Transfers.  In case of any transfers of Company Data under this DPA under SCC from the United Kingdom, to the extent such transfers are subject to the UK Data Protection Laws: (i) general and specific references in the Standard Contractual Clauses to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 shall hereby be deemed to have the same meaning as the equivalent reference in the UK Data Protection Laws; (ii) references in the SCC to “the law of the Member State in which the data exporter is established” shall hereby be deemed to mean “the law of the United Kingdom”; and (iii) any other obligation in the SCC determined by the Member State in which the data exporter is established shall hereby be deemed to refer to an obligation under UK Data Protection Laws.
  8. AUDITS. Company may audit Paradigm’s compliance with this DPA up to once per year, unless requested by a Supervisory Authority or in the event of a Data Breach. Such audit will be conducted by an independent third party (“Auditor”) reasonably acceptable to Paradigm. Before the commencement of any such on-site audit, Company must submit a detailed proposed audit plan to Paradigm at least two weeks in advance of the proposed audit date.  The proposed audit plan must describe the proposed scope, duration and state date of the audit.  Paradigm will review the proposed audit plan and provide Company with any concerns or questions. Paradigm will work cooperatively with Company to agree on a final audit plan. The results of the inspection and all information reviewed during such inspection will be deemed Paradigm’s confidential information and shall be protected by Auditor in accordance with the confidentiality provisions noted above. Notwithstanding any other terms, the Auditor may only disclose to the Company specific violations of the DPA, if any, and the basis for such findings, and shall not disclose to Company any of the records or information reviewed during the inspection.
  9. Obligations Post- Termination. Termination or expiration of this DPA shall not discharge the parties from their obligations that by their nature may reasonably be deemed to survive the termination or expiration of this DPA.
  10. Limitation of Liability. Each party’s liability in the aggregate arising out of or related to this DPA (including the SCCs)  shall be subject to the limitations of liability set forth in the Terms.   
  11. Severability. Any provision of this DPA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties will attempt in good faith to agree upon a valid and enforceable provision that is a reasonable substitute and shall incorporate such substitute provision into this Terms.

Annex 1

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:

Name of the data exporting organisation: Company (each, a data exporter)

And

Name of the data importing organisation: Paradigm (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:

  1. ‘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;
  2.  ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘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;
  4.  ‘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;
  5. ‘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;
  6. ‘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:

  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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;
  9. 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
  10. that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  1. 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;
  2. 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;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. 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,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5.  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;
  6. 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;
  7. 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;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. 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.

  1. 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:
  1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  1. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

 

Clause 8

Cooperation with supervisory authorities 

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

 

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

 

Clause 11

Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

 

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

Appendix 1 to the Standard Contractual Clauses (Processor)

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.  See DPA, Section 2.1. 

 

Appendix 2 to the Standard Contractual Clauses (Processor) 

This Appendix forms part of the Clauses and must be completed and signed by the parties.

 

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):  See DPA, Section 4.8.