THIS AGREEMENT is made on May 23, 2018
(1) A non-Peecho party which is a user of Peecho’s products and services including software, support and maintenance, software as a service (the “Customer”); and
(2) Peecho B.V., incorporated in, or existing and established under the laws of, the Netherlands whose registered office is at Rokin 75-5, Amsterdam (“Peecho”).
Peecho and Customer also separately referred to as “Party” or jointly as “Parties”.
This Data Processing Agreement (“DPA”) including any Schedules, is incorporated into the online agreement between Customer and Peecho for the purpose and/or use of the Services (the “Agreement”) to reflect the Parties’ agreement with regard to the Processing of Personal Data of Customer, in accordance with the requirements of Data Protection Legislation. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
APPLICATION OF THIS DPA
This DPA shall not replace any additional rights relating to Processing of Customer Data previously agreed to between Parties in the Agreement (including any existing data processing addendum to the Agreement).
HOW TO EXECUTE THIS DPA:
- This DPA consists of two parts: the main body of the DPA, and Attachment 1 and 2 with their Appendixes.
- Upon signing up for Peecho and using the Services, this DPA will become legally binding.
1.1 All capitalised terms used in this DPA have the meaning given to them below:
“Affiliates” means any entity which is controlled by, controls or is in common control with Peecho.
“Data Protection Legislation” means, before 25 May 2018, EU Directive 95/46/EC as transposed into the domestic legislation of the Netherlands, which from 25 May 2018 includes the GDPR and laws supplementing it in the Netherlands.
“Data Subject” means the individual to whom Personal Data relates.
GDPR: European Union General Data Protection Regulation 2016/679.
“Security Breach” has the meaning given in Section 7 of this DPA.
“Specification Of Security Measures” means the Information Specification Of Security Measures in attachment 1.
Sensitive Personal Data: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; data concerning health or sex life, and sexual orientation; and genetic or biometric data (otherwise known as ‘special categories of Personal Data’).
“Services” means the provision of the print button, print link, publication preview, print API or any other services provided under the Agreement where Peecho Processes Personal Data of Customer.
“Standard Contractual Clauses / SCC’s” means the agreement executed by and between Customer and Peecho, Inc. and attached as Attachment 2 pursuant to the European Commission’s decision C(2010)593 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
“Sub-processor” means a third party engaged by Peecho to Process Personal Data to perform some of Peecho’s obligations under the Agreement.
1.2 The terms “Controller“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Processing” (and all verb tenses), “Processor” and “Supervisory Authority” shall have the meaning given to them in the GDPR.
1.3 In addition to Section 1.2, “Personal Data” solely refers to Personal Data that is Processed by Peecho as a Processor on behalf of Customer and “Data Subject” refers to a Data Subject to which the Personal Data relates.
- PROCESSING OF PERSONAL DATA
2.1 In the course of providing the Services to Customer pursuant to the Agreement, Peecho may Process Personal Data on behalf of Customer. Peecho agrees to comply with the following provisions with respect to any Personal Data Processed for Customer in connection with the provision of the Services.
2.2 The parties agree that with regard to the Processing of Personal Data, Customer is the Controller, Peecho is a Processor and that Peecho will engage Sub-processors pursuant to the requirements set forth in “Sub-processors” in section 5 below.
2.3 Each Party shall comply with its obligations under applicable Data Protection Legislation.
2.4 Customer shall ensure that all Personal Data is legally and validly collected, provide all required information to Data Subjects, and record the legal basis and purpose of collection, including transfers to Peecho or Sub-Processors, whether inside or outside the EEA.
2.5 Customer represents that it is authorised to give data processing instructions to Peecho
2.6 Customer instructs Peecho (and authorises Peecho to instruct Sub-Processors) to Process Personal Data in accordance with this DPA and the Agreement.
2.7 Peecho shall Process Personal Data for the purpose of performing the Services as set out in the Agreement. If Peecho is required by law to conduct additional processing, it shall inform Customer of that legal requirement before Processing, unless such notification is prohibited by law.
2.8 If, in Peecho’s opinion, Customer’s instructions are either likely to infringe the Data Protection Legislation or would involve Peecho incurring additional costs not accounted for in the Agreement, Peecho is entitled to refuse to follow such instructions and shall inform Customer of the reasons for its refusal. In such cases, Customer shall provide alternative instructions in a timely manner and Peecho may cease all Processing of the impacted Personal Data (other than secure storage thereof) until it receives acceptable instructions.
2.9 Customer indemnifies Peecho against third party claims, including from Data Subjects, resulting from Peecho’s following Customer’s instructions under this DPA in good faith.
2.10 Customer shall not provide Sensitive Personal Data to Peecho if it is not necessary for Customer to store Sensitive Personal Data in the submitted publications. If the Customer stores Sensitive Personal Data in their Peecho Account or Placed Orders, the Customer explicitly consents to collecting, retaining, disclosing, and transferring the Sensitive Personal Data on the terms and for the same purposes as described in this DPA and Customer is solely liable for any risk, damage, or other harm resulting therefrom. Customer agrees to notify the Data Subject of the fact that it may not submit Sensitive Personal Data whilst using the Services. It is Customer’s sole responsibility to ensure that no Sensitive Personal Data of its Data Subjects has been provided to Peecho and Customer acknowledges that Peecho cannot be held liable for- and has no obligations relating to the Processing of Sensitive Personal Data.
2.11 Peecho will keep records of the Processing activities it performs on Customer’s behalf, including the following information:
- the details of the Parties and any representatives or DPOs;
- the categories of Processing activities performed;
- information regarding any cross-border data transfers, including transfers outside the EEA; and
- a general description of the relevant security measures in place.
- RIGHTS OF DATA SUBJECTS
3.1 To the extent Customer, in its use or receipt of the Services, does not have the ability to access, correct, release, amend, block or delete Personal Data, as required by Data Protection Legislation, Peecho shall comply with any commercially reasonable request by Customer to facilitate such actions to the extent Peecho is legally permitted to do so.
3.2 Peecho shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject to perform an action as described in article 3.1. Peecho shall not respond to any such Data Subject request without Customer’s prior written consent except to confirm that the request relates to the Customer. Peecho shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a Data Subject’s request for access to that person’s Personal Data, to the extent legally permitted and to the extent Customer does not have access to such Personal Data through its use or receipt of the Services.
- CONFIDENTIALITY OBLIGATIONS
4.1 All persons authorised by Peecho to Process the Personal Data shall be subject to either contractual obligations of confidential similarly stringent to those in the Agreement or statutory obligations of confidentiality.
4.2 In order to meet its legal or regulatory obligations, each Party may disclose the contents of this DPA to the US Department of Commerce, US Federal Trade Commission, or a European Data Protection Supervisory Authority.
5.1 Peecho may engage Sub-Processors in accordance with this Section.
5.2 Peecho will be responsible for any failure by a Sub-Processor to perform the Processing for which it was engaged.
5.3 Peecho shall impose on Sub-Processors data protection obligations that are similarly stringent as those in this DPA, including the obligation to implement GDPR-compliant technical and organizational measures.
5.4 A current list of the countries in which Sub-Processors are located is attached as attachment 1 of this DPA. Peecho shall update this list on the website if it engages new Sub-Processors in other countries. Customer may make reasonable objections to such new or replacement Sub-Processor locations within the seven (7) days’ notice period, with its sole recourse being to terminate its Agreement with Peecho. In the event of termination under this Section.
5.5 Customer will not be entitled to a refund (unless they inform us about an order not arriving or being damaged. In that case we need pictures of the damaged products.) of any sums and shall pay to Peecho all outstanding amounts within thirty (30) days of the termination effective date.
5.6 Customer acknowledges and agrees that (a) Peecho’s Affiliates may be retained as Sub- processors.
- SECURITY AND COMPLIANCE
6.1 Taking into account the state of the art, costs of implementation, and nature of the Processing, Peecho shall maintain appropriate technical and organisational measures to protect Personal Data against accidental, unauthorised, or unlawful destruction, loss, alteration, disclosure, and access (“Security Measures”), including as appropriate:
6.1.1 strict control of the access to Personal Data;
6.1.2 the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of Processing systems;
6.2. Upon Customer’s request, Peecho will provide reasonably sufficient documentary information to Customer to demonstrate its compliance with this DPA.
6.3. In cases where Customer substantiates that documentary information cannot satisfactorily demonstrate Peecho’s compliance and has a justifiable suspicion that Peecho is in breach of this DPA, Customer may conduct audit on Peecho’s premises to confirm Peecho’s compliance with this DPA.
6.4. Any such audit conducted shall be:
6.4.1. Requested by Customer with at least thirty (30) days’ notice, and such notice shall indicate the reasons for the information or audit request, and will be effective upon Peecho’s confirmation of receipt;
6.4.2. Conducted within mutually agreed scope, duration, and timing, with the scope of information provided to be subject to ’s reasonable discretion on the scope of information to be provided given its potential sensitivity;
6.4.3. Performed by Peecho, or a third party that is pre-approved by Peecho, such approval not to be unreasonably withheld;
6.4.4. Conducted no more than once per year, unless an audit is also requested by a Supervisory Authority;
6.4.5. Conducted within Peecho’s normal business hours and with best efforts taken to avoid disruption of Peecho’s business operations; and
6.4.6. Conducted at Customer’s cost, unless a material breach of this DPA is found, in which case Peecho shall bear the costs.
- SECURITY BREACH MANAGEMENT AND NOTIFICATION
7.1 If Peecho becomes aware of any unlawful access to any Customer Personal Data stored on Peecho’s equipment or in Peecho’s facilities, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Customer Personal Data (“Security Breach”), Peecho will promptly: (a) notify Customer of the Security Breach; (b) investigate the Security Breach and provide Customer with information about the Security Breach; and (c) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Breach.
7.2. Customer agrees that: (i) An unsuccessful Security Breach attempt will not be subject to this Section. An unsuccessful Security Breach attempt is one that results in no unauthorized access to Customer Personal Data or to any of Peecho’s equipment or facilities storing Customer Personal 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 IP addresses or headers) or similar incidents; and (ii) Peecho’s obligation to report or respond to a Security Breach under this Section is not and will not be construed as an acknowledgement by Peecho of any fault or liability with respect to the Security Breach.
7.3. Notification(s) of Security Breaches, if any, will be delivered to one or more of Customer’s business, technical or administrative contacts by any means Peecho selects, including via email. It is Customer’s sole responsibility to ensure it maintains accurate contact information on Peecho’s support systems at all times.
7.4 Peecho also has Breach agreements with its Sub Processors.
- RETURN AND DELETION OF CUSTOMER DATA
Peecho shall return Customer Data to Customer and/or delete Customer Data in accordance with Peecho’s procedures and Data Protection Legislation and/or consistent with the terms of the Agreement.
- ADDITIONAL TERMS FOR EU PERSONAL DATA
9.1 Customer acknowledges that Personal Data may be Processed outside the EEA in accordance with the SCCs attached to this DPA as Attachment 2, if executed by the Parties.
9.2 The SCCs between Peecho and Customer shall take effect upon the later of:
9.2.1 the final date of signature of the SCCs; or
9.2.2 the first transfer of Personal Data outside the EEA.
9.3 Peecho seeks to execute SCCs with its Sub-Processors who transfer Personal Data outside the EEA or otherwise confirm that Sub-Processors implement alternative appropriate safeguards under the Data Protection Legislation (e.g. Privacy Shield certification, binding corporate rules, or other contractual measures).
9.4 This DPA and the Agreement are Data Exporter’s complete and final instructions to Data Importer for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Data Exporter to Process Personal Data: (a) in accordance with the Agreement and applicable orders; and (b) to comply with other reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
9.5 Pursuant to Clause 5(h) of the Standard Contractual Clauses, the Data Exporter acknowledges and expressly agrees that Peecho may engage third-party Sub-processors in connection with the provision of the Services.
9.6 Data Importer shall make available to Data Exporter a current list of countries in which Sub-processors are located for the respective Services on request, such request to be not more than once per annum unless such information is required by reason of an enquiry by a data protection authority.
9.7 The parties agree that the copies of the Sub-processor agreements that must be sent by the Data Importer to the Data Exporter pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or provisions unrelated to the Standard Contractual Clauses or their equivalent, removed by the Data Importer beforehand; and, that such copies will be provided by Data Importer only upon reasonable request by Data Exporter.
9.8 The parties agree that the audits described in Clause 5(f), Clause 11 and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: Upon Data Exporter’s request, and subject to the confidentiality obligations set forth in the Agreement, Data Importer shall, within a reasonable period following such request, make available to Data Exporter (or Data Exporter’s independent, third party auditor that is not a competitor of Peecho) information regarding Peechos compliance with the obligations set forth in this DPA in the form of the third- party certifications and audits it carries out as described in the Agreement to the extent Peecho makes them generally available to its customers. Customer may contact Data Importer in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Data Importer for any time expended for any such on-site audit at the Peecho then-current professional services rates, which shall be made available to Data Exporter upon request. Before the commencement of any such on-site audit, Data Exporter and Data Importer shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Data Exporter shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Data Importer. Data Exporter shall promptly notify Data Importer with information regarding any non-compliance discovered during the course of an audit.
9.9 The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) shall be provided by the Data Importer to the Data Exporter only upon Data Exporter’s request.
- LIMITATION OF LIABILITY
10.1. To the greatest extent permitted by law, neither Party will be liable to the other in relation to this DPA for any indirect, incidental, exemplary, special reliance, or consequential damages, including costs and loss of profits, delay, business, savings, and loss or corruption of data, even if advised of the possibility of these damages, regardless of whether arising from breach of warranty, contract, negligence, or any other form or theory of liability.
10.2. Notwithstanding anything to the contrary in this DPA or any other applicable terms, Peecho’s liability to Customer and Customer Affiliates shall apply in aggregate for all claims under the Agreement and any DPA under the Agreement and will in no circumstance exceed the amount stated in the Agreement.
11.1. Governing Law. This DPA is governed by the law of the Netherlands and any disputes will be resolved by the competent courts in Amsterdam, the Netherlands.
11.2. Authority. Each Party represents and warrants to the other that the execution and delivery of this DPA, and the performance of its obligations hereunder, have been duly authorized.
11.3. No waiver. Except as otherwise stated in this DPA, any failure or neglect by either Party to enforce any of the terms of this DPA at any time shall not be construed as or deemed to be a waiver of that Party’s rights hereunder.
11.4. Interpretation. The headings of the sections of this DPA have been inserted for reference only and shall in no way impact its interpretation. If this DPA is ever translated into another language, it will be for Supplier’s convenience only and the English language version will exclusively prevail.
11.5. Execution & Counterparts. This DPA will be agreed to online by signing up or using the Services, which will be sufficient to legally bind the Parties.
11.6. Amendment and Modification. Peecho may propose changes to this DPA to address the requirements of any Data Protection Legislation or to cover new services it offers to Customer, to which Customer will not unreasonably withhold or delay its agreement. Notwithstanding the foregoing, this DPA may only be modified or amended in writing signed by an authorized representative of both Parties.
11.7. Severability. Should any provision of this DPA be determined to be void, invalid, or otherwise unenforceable by any court of competent jurisdiction, then the Parties shall agree to a suitable and equitable provision to be substituted to carry out, so far as may be valid and enforceable, the intent and purpose of the impugned provision, and the remainder of this DPA will not be affected.
11.8. This DPA shall only become legally binding between Customer and Peecho when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully completed. An electronic agreement will have the same legal affect as an agreement with a hand written signature.
11.9. Regarding the purpose of this DPA and strictly to the extent of any conflict in meaning:
11.9.1 The terms of this DPA will prevail over the Agreement; and
11.9.2 The terms of the SCCs, if executed by the Parties, will prevail over this DPA and the Agreement regarding Personal Data.
Attachment 1 – Description of the Processing of Personal Data
1. Overview of Personal Data
We collect Personal Information that you submit to us voluntarily through our Website or Services.
- When you use the Website, we collect your IP address. We collect this information to better tailor the features, performance and support of our products and services.
- When you register on the Website, we will collect your email address and password. We use these data to create your account and to provide the Services to you.
- When you create your profile on the Website after registering, we will collect on an optional basis other Personal Information, such as name, address, postal code, city, country, phone number, VAT number and bank account details. You do not have to provide this additional information but if you do, we will use this information to make placing your orders easier, to contact you about your orders (only if necessary) and to transfer your profit to you.
- When you order products or services on the Website, we will collect all information necessary to complete the transaction, including your name, credit card information, billing information and shipping information.
- When you subscribe to the Peecho newsletter / email offerings when signing up, we will collect your email address to provide you with promotional information about our services where you have agreed to receive such communications. You may unsubscribe from the newsletter service at any time by following the unsubscribe instructions provided in the newsletter / email you receive or by contacting us.
- When you contact us to submit comments, questions or feedback using email@example.com or firstname.lastname@example.org, we will collect your name, email address and your comment, question or feedback to answer your request, questions or concerns.
- When you voluntarily participate in one of our surveys, we may collect additional profile information such as demographic information. We use this information to better tailor the features, performance and support of our products and services.
- When you contact us using the request forms on the Website or in the Services, we will collect your name, email address and your comment or question that you enter into the
- When you contact us by sending us an email, we will collect and store your email address and any information contained in the email you send us and any information attached to the email for so long as is necessary. This information is used to answer your email and address any questions and concerns you may have.
When you provide us with personal information about your contacts we will only use this information for the specific reason for which it is provided.
2. Specification Of Security Measures
Where do we geographically store our data?
The Amazon servers in which our data is stored, are located in Ireland, within the EU. Find Amazon’s security measures via this link: https://aws.amazon.com/security/.
How long do we store files?
The Peecho team, the printers and the merchant are able to access the file that is ordered up to 90 days after an order. After 90 days, the file is not accessible anymore. For 90 days after this, our tech team is still able to find the file. On request of customer, we send it to the printer again. After 180 days, the file is deleted completely.
What procedure do we have to secure these files that we store?
The files are stored in private Amazon buckets, only tech team and printers can access. The keys are encrypted. The printers can only access the files for 90 days after the order.
How long do we store merchant accounts?
After 5 years we will email an inactive (=no order, not logging in) merchant to ask if they want to keep their account. If not, we will delete it. If someone asks us to delete their account, we will delete it.
What procedure do we have to secure the merchants PI that we store?
Passwords are encrypted in the database. Payment info is stored in private Amazon buckets. To access this database, we use a PKI based security to access. Our tech team looks into the security of merchant PI regularly.
How long do we store PI that people fill out after ordering?
All Peecho employees can access this information in the dashboard. We need this in order to view customers history to help them with their questions. If someone requests to delete their PI, we will delete it. Customers enter their payment details on Adyens side, we don’t store any payment detail from a placed order. When a customer is directed to Adyens website, they will be directed to an encrypted link.
What procedure do we have to secure the customers PI that we store?
The PI is stored in private buckets.
What measures have we taken internally to secure PI?
- Peecho employees have to change their passwords every 3 months.
- When downloading files on their computers, Peecho employees have to delete the files when they don’t need them anymore.
- All Peecho employees have to delete all Peecho information from their computers when leaving the company.
- All account from ex-employees have to be deleted when they leave the company.
- Peecho employees are not aloud to leave computer with Peecho data somewhere unguarded.
- Peecho employees are not aloud to leave printed files with PI in places where other people can read it.
- All Peecho employees need to have a virus scanner on their computer.
- All Peecho employees are obliged to tell the DPO about a data breach and the DPO is obliged to start the data breach procedure.
Our Sub Processors are based in the following countries:
- The Netherlands
- United Kingdom
- United States
- New Zealand
For more information about our Sub Processors, please contact email@example.com.
Commission Decision C(2010)593
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 Customer and Peecho (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.
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 (Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.) ;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
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 10 the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer (Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.)
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, (ii) any accidental or unauthorised access, and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Customer.
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.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses (This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision . Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely the Customer
- 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.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses will be legally binding for the Parties after the Customer signed up and starts using the Services.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is (please specify briefly your activities relevant to the transfer):
The data exporter is a non-Peecho party which is a user of Peecho’s products and services including software, support and maintenance, software as a service.
The data importer is (please specify briefly activities relevant to the transfer):
The data importer is Peecho. a global producer and provider of software, software as a service and other services (“Software and Services”).
The personal data transferred concern the following categories of data subjects (please specify):
The data subject includes the data exporter’s end-users, employees, contractors, collaborators, and customers of the data exporter.
Categories of data
The personal data transferred concern the following categories of data (please specify):
The personal data transferred concern the following categories of data (please specify) includes documents and other data in an electronic form in the context of Software and Services.
The personal data transferred will be subject to the following basic processing activities (please specify):
- Duration and Object of Data Processing. The duration of data processing shall be for the term designated under the agreement between Peecho and the Customer. The objective of the data processing is the provision and performance of Software and Services.
- Scope and Purpose of Data Processing. The scope and purpose of processing personal data is described in the agreement between Peecho and Customer. The data importer operates a global network of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors operate such facilities.
- Data Exporter’s Instructions. For Software and Services, Peecho will only act upon Customer’s instructions as conveyed to Peecho by Customer.
- Customer Data Deletion or Return. Upon expiration or termination of the agreement with the Customer or in the case of data supplied as part of a support ticket after 30 days of the closure of such support ticket, data importer will delete customer data.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and will be legally binding for the Parties after the Customer signed up and starts using the Services.
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):