Data Processing Addendum

Data Processing Addendum #

This Data Processing Addendum (“DPA”) supplements the Agreement when the GDPR applies to Customer’s use of the ZADA Services to process Customer Data. Unless otherwise defined in the DPA or elsewhere in the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 16 of the DPA.

  1. Data Processing
    1. Scope and Roles. With respect to the Customer Data processed under the Agreement by ZADA that is subject to the GDPR, ZADA will act as “processor” to Customer and Customer will act as “controller,” as each term is defined in the GDPR.
    2. Details of Data Processing. Unless the parties agree otherwise in a written agreement that references and expressly replaces this Section 1.2, the parties agree as follows:
      1. Subject matter. The subject matter of the data processing under this DPA is Customer Data processed by ZADA under the Agreement.
      2. Duration. Unless Customer directs otherwise in writing, ZADA shall process Customer Data during the Service Term for the applicable ZADA Services, and thereafter only as set forth herein or otherwise agreed to by ZADA and Customer in writing.
      3. Purpose. The purpose of the data processing under this DPA is the provision of the ZADA Services ordered by Customer from time to time.
      4. Nature of the processing: Defining, creating, issuing, exchanging, verifying, storing, transmitting to and from third parties, and otherwise processing Digital Credentials and related information as described in the Agreement and Documentation and initiated by Customer from time to time.
      5. Type of Customer Data: Customer Data contained in, related to, or derivable from, Digital Credentials and the information relating thereto sent to or through the ZADA Services.
      6. Categories of data subjects: The data subjects may include Customer’s Authorized Users and the third parties with whom Authorized Users exchange personal data utilizing the ZADA Services.
    3. Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
  1. Customer Instructions.

    The parties agree that this DPA and the Agreement (including the provision of instructions via tools made available as part of the ZADA Services, such as the ZADA Core APIs, ZADA Issuer and Verifier WebApps, and the Mobile SDK) constitute Customer’s documented instructions regarding ZADA’s processing of Customer Data (“Documented Instructions”). ZADA will process Customer Data only in accordance with Documented Instructions, and then only for the purposes of providing the ZADA Services and as otherwise necessary to perform its obligations under the Agreement. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between ZADA and Customer, including agreement on any additional fees payable by Customer to ZADA for carrying out such instructions.
  2. Confidentiality of Customer Data.

    ZADA will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the ZADA Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends ZADA a demand for Customer Data, ZADA will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, ZADA may provide Customer’s basic contact information to the governmental body. If compelled to disclose Customer Data to a governmental body, then ZADA will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless ZADA is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses. ZADA restricts its personnel from processing Customer Data without authorization by ZADA as described in the ZADA Security Standards. ZADA imposes appropriate contractual obligations upon its employees and contractors, including relevant obligations regarding confidentiality, data protection and data security.
  3. Security of Data Processing.
    1. ZADA has implemented and will maintain the technical and organizational measures for the ZADA Systems and ZADA Services reasonably appropriate in accordance with Article 32 of the GDPR to ensure the security of Customer Data, as described in the ZADA Security Standards and this Section. In particular, ZADA has implemented and will maintain the following technical and organizational measures:

      (a)    security of the ZADA Systems as set out in Section 1.1 of the ZADA Security Standards;
      (b)    physical security of the facilities as set out in Section 1.2 of the ZADA Security Standards;
      (c)    measures to control access rights for ZADA employees and contractors in relation to the ZADA Systems as set out in Section 1.2 of the ZADA Security Standards; and
      (d)    processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by ZADA as described in Section 2 of the ZADA Security Standards.
    2. Customer shall implement and maintain the technical and organizational measures, and otherwise take such steps as Customer considers adequate, to maintain appropriate security and protection of Customer Data, and to comply with Customer’s obligations relating thereto under the GDPR, including use of pseudonymization and encryption to protect Customer Data from unauthorized access and measures to control access rights to Customer Data.
  4. Sub-processing.
    1. Authorized Sub-processors. Customer agrees that ZADA may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. Customer hereby authorizes ZADA to use those sub-processors already engaged by ZADA as of the Start Date of the applicable ZADA Service. At least 30 days before ZADA engages any new sub-processor to carry out processing activities on Customer Data on behalf of Customer, ZADA will provide written notice to Customer, which may be provided by publishing the information to https://www.ZADA.com/addendum-data-processing. Customer shall have 30 days from the delivery or publication of such notice to provide written notice of its reasonable objection to the use of the sub-processor. Where Customer provides such notice, ZADA will respond with any known commercially reasonable solution which avoids the use of the sub-processor within 30 days from the date when the Client registered the objection. Where no such solution can be found, either party may (notwithstanding anything to the contrary in the Agreement) terminate the relevant ZADA Services immediately on notice to the other party. Customer consents to ZADA’s use of sub-processors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorize in writing, ZADA will not permit any sub-processor to carry out processing activities on Customer Data on behalf of Customer.
    2. Sub-processor Obligations. Where ZADA authorizes any sub-processor as described in Section 5.1:
      (i)    ZADA will restrict the sub-processor’s access to Customer Data only to what is necessary to maintain the ZADA Services or to provide the ZADA Services to Customer and Authorized Users in accordance with the Agreement and the Documentation and ZADA will prohibit the sub-processor from accessing Customer Data for any other purpose;
      (ii)    ZADA will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by ZADA under this DPA, ZADA will impose on the subprocessor contractual obligations that mirror those that ZADA has under this DPA; and
      (iii)    ZADA will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause ZADA to breach any of ZADA’s obligations under this DPA.
  5. Data Subject Rights.

    ZADA will promptly notify Customer of any communication from a data subject regarding the processing of their personal data which is part of the Customer Data (including a request to change or delete the personal data), or any other communication (including from a supervisory authority) relating to either party’s obligations under the GDPR in respect of the Customer Data. Taking into account the nature of the ZADA Services, Digital Credentials, and the need to write certain information to Digital Credential Anchor Networks, ZADA will use reasonable commercial efforts to facilitate Customer’s compliance with its obligations towards data subjects under the GDPR. The foregoing notwithstanding, Customer understands and agrees that it is not currently possible, and it may never be possible, to delete or change any personal data written to a Digital Credential Anchor Network.
  6. Security Breach Notification.
    1. Security Incident. ZADA will (a) notify Customer of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
    2. ZADA Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, ZADA will include in the notification under Section 8.1 such information about the Security Incident as ZADA is reasonably able to disclose to Customer, taking into account the nature of the ZADA Services, the information available to ZADA, and any restrictions on disclosing the information, such as confidentiality.
    3. Unsuccessful Security Incidents. Customer agrees that:
      (i)    an unsuccessful Security Incident will not be subject to this Section 8. An unsuccessful Security Incident is one that results in no unauthorized access to Customer Data or to any of ZADA’s equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
      (ii)    ZADA’s obligation to report or respond to a Security Incident under this Section 8 is not and will not be construed as an acknowledgement by ZADA of any fault or liability of ZADA with respect to the Security Incident.
    4. Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means ZADA selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the ZADA management console and secure transmission at all times.
  7. ZADA Certifications and Audits.
    1. In addition to the information contained in this DPA, upon Customer’s request, ZADA may make available it’s certifications and results of audits.
    2. Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the ZADA Services and the information available to ZADA, ZADA will assist Customer in complying with Customer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles 35 and 36 of the GDPR, by providing the information ZADA makes available under this Section 8.
  8. Customer Audit Rights Under GDPR.

    Customer agrees to exercise any right it may have under the GDPR to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing ZADA to carry out the audit described in Section 9, which shall be performed at ZADA’s expense. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending ZADA written notice as provided for in the Agreement, provided that Customer shall reimburse ZADA for the costs it incurs beyond those that it would have incurred under the preceding sentence. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses.
  9. Transfers of Personal Data.

    The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if ZADA has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
  10. Terminations of the DPA.

    This DPA shall continue in force until the termination of the Agreement.
  11. Return or Deletion of Customer Data.

    Customer will have the ability to retrieve or delete Customer Data in accordance with this Section from the Start Date to and through the expiration or termination of the applicable Service Term. Thereafter, ZADA will use reasonable commercial efforts to facilitate Customer’s written requests to delete or retrieve Customer Data, but ZADA does not guarantee that it will maintain copies of Customer Data after the end of the applicable Service Term, except where it is required by law to do so.
  12. Duties to Inform.

    Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by ZADA, ZADA will inform Customer without undue delay. ZADA will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
  13. Entire Agreement; Conflict.

    Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement or any other agreement between the parties and this DPA with regard to Customer Data, the terms of this DPA will control.
  14. Definitions.

    Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below:

    “Customer Data” means the ZADA-Processed Customer Information that constitutes “personal data” as defined in the GDPR that is sent to or through the ZADA Services by, to, or from Customer or Authorized Users.

    “ZADA Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.

    “ZADA Systems” means ZADA’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within ZADA’s control and are used to provide the ZADA Services.

    “EEA” means the European Economic Area.

    “GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and its implementing laws and regulations in each applicable EEA jurisdiction.

    “processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.

    “Security Incident” means a breach of ZADA’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.

    “Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.

Annex 1 – ZADA Security Standards #

Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Agreement.

  1. Information Security Program.

    ZADA will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the ZADA Systems, and (c) minimize security risks, including through risk assessment and regular testing. ZADA will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
    1. Network Security. The ZADA Systems and ZADA Services will be electronically accessible to employees, contractors and any other person as necessary to provide the ZADA Services. ZADA will maintain access controls and policies to manage what access is allowed to the ZADA Systems from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. ZADA will maintain corrective action and incident response plans to respond to potential security threats.
    2. Physical Security. Physical components of the ZADA Systems are housed in facilities operated by ZADA or third party hosting or cloud computing or storage providers (the “Facilities”). With respect to ZADA-operated Facilities, (i) physical barrier controls are used to prevent unauthorized entrance to the Facilities; (ii) passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.); (iii) ZADA provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges; (iv) all access points (other than main entry doors during business hours) are maintained in a secured (locked) state; and (v) visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor badge that must be worn while the visitor is at the Facility, and are escorted by authorized employees or contractors while visiting the Facilities. With respect to facilities operated by third parties, ZADA has obtained appropriate contractual assurances from such parties consistent with meeting its obligations under the Agreement, the DPA, and these ZADA Security Standards.
  2. Continued Evaluation.

    ZADA will conduct periodic reviews of the security of the ZADA Systems and ZADA Services and adequacy of its information security program as measured against industry security standards and its policies and procedures. ZADA will continually evaluate the security of the ZADA Systems and ZADA Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

Annex 2 – Standard Contractual Clauses (processors) #

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

The entity identified as “Customer” in the

DPA (the “data exporter”) and

ZADA, Inc.

(the “data importer”)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions For the purposes of the Clauses:

(a)    ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b)    ‘the data exporter’ means the controller who transfers the personal data;

(c)    ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d)    ‘the 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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2 – Details on 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 organizational 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, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(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

1 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

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 organizational 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 unauthorized access, and

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

(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. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

2.    The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3.    The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4.    The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12 – Obligation after the termination of personal data processing services

1.    The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2.    The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

Data exporter

The data exporter is the entity identified as “Customer” in the DPA

Data importer

The data importer is ZADA, Inc.

Data subjects

Data subjects are defined in Section 1.2 of the DPA.

Categories of data

The personal data is defined in Section 1.2 of the DPA.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

The processing operations are defined in Section 1.2 of the DPA.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed 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):

The technical and organizational security measures implemented by the data importer are as described in the DPA.

Annex 3 – Authorized Sub-Processors #

ZADA utilizes the following Sub-Processors for Customer Data within ZADA Products as defined in the DPA:

  • Amazon Web Services: software hosting;
  • Heroku: Webapp hosting
  • Mongodb: Database hosting
  • Firebase: push notifications for Mobile App;
  • SMSPoh: mobile text messaging.

ZADA utilizes the following Sub-Processors for certain back-office functions where an employee of the Customer is the Data Subject:

  • Xero.com: invoicing;
  • Google Workspaces: content management;
  • HubSpot: customer account management and support tracking;
  • Hubspot: support automation;
  • Basecamp: task and project management, communication;
  • Google Meet: communications.
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Updated on December 8, 2023