Standard Customer DPA
Updated July 20, 2020
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) forms part of the ClickDimensions Marketing Automation Terms of Service for the purchase of marketing automation services from ClickDimensions (identified either as “Services” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.
By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent ClickDimensions processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the Services to Customer pursuant to the Agreement, ClickDimensions may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
HOW THIS DPA APPLIES
(i) If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to, and forms part of, the Agreement. In such case, the ClickDimensions entity that is party to the Agreement is party to this DPA.
(ii) This DPA prevails over any any additional, conflicting, or inconsistent terms and conditions appearing in the Agreement regarding the subject of this DPA. No other agreement may limit or extend the rights, obligations and/or liability of either Party under this DPA and under statutory law unless expressly agreed in this DPA or an amendment to this DPA.
DATA PROCESSING TERMS
1. DEFINITIONS a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b) “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and ClickDimensions, but has not signed its own Order Form with ClickDimensions and is not a “Customer” as defined under the Agreement.
c) “ClickDimensions” means the ClickDimensions entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, being ClickDimensions LLC, a company organized as limited liability company in the State of Georgia USA.
d) “ClickDimensions Group” means ClickDimensions and its Affiliates engaged in the Processing of Personal Data.
e) “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
f) “Customer Data” means what is defined in the Agreement as “Customer Data”.
g) “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
h) “Data Subject” means the identified or identifiable person to whom Personal Data relates.
i) “GDPR” means the Regulation (EU) 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.
j) “Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
k) “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
l) “Processor” means the entity which Processes Personal Data on behalf of the Controller.
m) “Regulator” means the data protection supervisory authority which has jurisdiction over a Data Controller’s Processing of Personal Data.
n) “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via ClickDimensions’ webpage, or as otherwise made reasonably available by ClickDimensions.
o) “Standard Contractual Clauses” or “Clauses” means the Standard Contractual Clauses (Processors) 2010/87/EU as attached hereto as Annex 1, or any subsequent version thereof published by the European Commission (which will automatically apply).
p) “Sub-processor” means any Processor engaged by ClickDimensions or a member of the ClickDimensions Group.
q) “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
r) “Third Country” means any country outside of the scope of the data protection laws of the European Union or the European Economic Area (“EEA”), excluding countries recognized by the Regulator as providing adequate protection for Personal Data from time to time
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, ClickDimensions is the Processor and that ClickDimensions or members of the ClickDimensions Group will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the means by which Customer acquired Personal Data and for the accuracy, quality, and legality of Customer Data provided to ClickDimensions within the framework of the Services.
2.3 ClickDimensions’ Processing of Personal Data. Subject to the Agreement with Customer, ClickDimensions shall Process Personal Data in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing for Customer to be able to use the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. To the extent that ClickDimensions cannot comply with a change to Customer’s instructions without incurring material additional costs and/or because in ClickDimensions’ reasonable opinion compliance with such
Any terms not defined in this DPA but defined in the Data Protection Laws and Regulations shall have the meaning assigned to them in the Data Protection Laws and Regulations. In case of doubt, the definitions of the GDPR shall apply.
2. PROCESSING OF PERSONAL DATA 3
instructions is legally prohibited or is likely to result in a violation of Data Protection Laws and Regulations, ClickDimensions shall: (i) immediately inform Customer, giving full details of the problem; and (ii) cease all processing of the affected Personal Data (other than securely storing those data) until revised instructions are received. Any changes in Customer’s instructions that affect the pricing structure or commercial relationship between the parties must go through an appropriate change control procedure.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by ClickDimensions is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
3.1 Data Subject Requests. ClickDimensions shall, to the extent legally permitted, promptly notify Customer if ClickDimensions receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, ClickDimensions shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, ClickDimensions shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent ClickDimensions is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from ClickDimensions’ provision of such assistance.
4.1 Confidentiality. ClickDimensions shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. ClickDimensions shall ensure that such confidentiality obligations survive the termination of the personnel engagement and/or the Agreement. Further details are provided in the Security Documentation.
4.2 Reliability. ClickDimensions shall take commercially reasonable steps to ensure the reliability of any ClickDimensions personnel engaged in the Processing of Personal Data.
4.3 Limitation of Access. ClickDimensions shall ensure that ClickDimensions’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement and only as required to perform the Services.
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that ClickDimensions may engage third-party Sub-processors in connection with the provision of the Services. ClickDimensions has entered into an agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
5.2 List of Current Sub-processors and Notification of New Sub-processors. The current list of Sub-processors used by ClickDimensions is located here: https://clickdimensions.com/about/subprocessors/ (“Sub-processor List”) and Customer consents to the use of such Sub-processors as of the date of this DPA. In addition, Customer hereby grants ClickDimensions a general authorization to utilize new sub-processors in accordance with the process below. If Customer subscribes to the mechanism to subscribe to notifications of new Sub-processors, ClickDimensions shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the Services.
3. RIGHTS OF DATA SUBJECTS
4. CLICKDIMENSIONS PERSONNEL
5. SUB-PROCESSORS 4
5.3 Objection Right for New Sub-processors. Customer may object to ClickDimensions’ use of a new Sub-processor by notifying ClickDimensions promptly in writing within ten (10) business days after receipt of ClickDimensions’ notice in accordance with the mechanism set out in Section 5.2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, ClickDimensions will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If ClickDimensions is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer’s sole remedy is to terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by ClickDimensions without the use of the objected-to new Sub-processor by providing written notice to ClickDimensions.
5.4 Liability. ClickDimensions shall be liable for the acts and omissions of its Sub-processors to the same extent ClickDimensions would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
6.1 Controls for the Protection of Customer Data. ClickDimensions shall maintain appropriate industry-standard technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and as set forth in the Security Documentation. ClickDimensions regularly monitors compliance with these measures. ClickDimensions will not materially decrease the overall security of the Services during a subscription term.
6.2 Third-Party Certifications and Audits. Upon Customer’s written request not more than once per year, and subject to the confidentiality obligations set forth in the Agreement, ClickDimensions shall make available to Customer that is not a competitor of ClickDimensions (or Customer’s independent, third-party auditor that is not a competitor of ClickDimensions) a copy of ClickDimensions’ then most recent third-party audits or certifications, as applicable. Notwithstanding the foregoing limitations, Customer may conduct an audit at any time in particular, if (i) a Customer Data Incident has occurred which concerns it; or (ii) an audit is formally requested by its data protection authority.
9.1 Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf
7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
ClickDimensions maintains security incident management policies and procedures specified in Security Documentation and, to the extent required under applicable Data Protection Laws and Regulations, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by ClickDimensions or its Sub-processors of which ClickDimensions becomes aware (a “Customer Data Incident”). ClickDimensions shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as ClickDimensions deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within ClickDimensions’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.
8. RETURN AND DELETION OF CUSTOMER DATA
Subject to the Agreement, ClickDimensions shall, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in applicable Data Protection Laws and Regulations.
9. AUTHORIZED AFFILIATES 5
of its Authorized Affiliates, thereby establishing a separate DPA between ClickDimensions and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
9.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with ClickDimensions under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
9.3 Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA with ClickDimensions, it shall, to the extent required under applicable Data Protection Laws and Regulations, be entitled to exercise the rights and seek remedies under this DPA, subject to the following: 9.3.1 Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against ClickDimensions directly by itself, the parties agree that: (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 9.3.2, below).
9.3.2 The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on ClickDimensions and its Sub-Processors by combining, to the extent reasonable possible, several audit requests carried out on behalf of different Authorized Affiliates in one single audit.
11.1 GDPR. ClickDimensions will Process Personal Data in accordance with the GDPR requirements directly applicable to ClickDimensions’ provision of its Services.
11.2 Data Protection Impact Assessment. Upon Customer’s request, ClickDimensions shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to ClickDimensions. ClickDimensions shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory
10. LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and ClickDimensions, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
For the avoidance of doubt, ClickDimensions’ and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.
Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules and Appendices (if any).
11. EUROPEAN SPECIFIC PROVISIONS 6
Authority in the performance of its tasks relating to Section 11.2 of this DPA, to the extent required under the GDPR.
11.3 Transfer mechanisms for data transfers.
a) Transfers of Personal Data to the US: In order to ensure adequate safeguards for the Personal Data where it is transferred to the Data Processor in a Third Country, the Controller shall comply with the exporter’s obligations in the standard contractual clauses for the transfer of Personal Data to processors established in third countries set out in the European Commission Decision 2010/87/EC (“Standard Contractual Clauses”) and ClickDimensions shall comply with the importers obligations in the Standard Contractual Clauses in respect of that transferred personal data. The Standard Contractual Clauses are deemed to be incorporated into and form part of this DPA, including that Appendix 1 to the Standard Contractual Clauses are deemed to incorporate the information set out in Section 2 of this DPA and Appendix 2 to the Standard Contractual Clauses are deemed to incorporate the information set out in Section 6.1 of this DPA. The parties undertake to meet and agree to any update and amendment to the Standard Contractual Clauses which may be required as new templates are validated and published by the Regulator. .
b) Transfers to Israel: The European Commission Decision of 31 January 2011 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data by the State of Israel with regard to automated processing of personal data (notified under document C(2011) 332) declared that Israel offers an adequate level of Data Protection. Therefore, Personal Data can flow from the EU countries and three EEA member countries (Norway, Liechtenstein and Iceland) to Israel without any further safeguard being necessary.
12. LEGAL EFFECT
This DPA shall only become legally binding between Customer and ClickDimensions when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully completed.
List of Schedules
• SCHEDULE 1 – DETAILS OF THE PROCESSING
• SCHEDULE 2 – STANDARD CONTRACTUAL CLAUSES 7
The parties’ authorized signatories have duly executed this Agreement:
Customer Legal Name:
CLICKDIMENSIONS LLC :
● Customer’s users authorized by Customer to use the Services
● Employees, agents, advisors, freelancers of Customer (who are natural persons)
● Prospects, customers, business partners and vendors of Customer (who are natural persons)
● Employees or contact persons of Customer’s prospects, customers, business partners and vendors ● Email address
● First and last name
SCHEDULE 1 – DETAILS OF THE PROCESSING
Nature and Purpose of Processing
ClickDimensions will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
Duration of Processing
Subject to any Section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, ClickDimensions will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
SCHEDULE 2 – STANDARD CONTRACTUAL CLAUSES
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: _______________________
Tel.:_________________ …………………. e-mail: ______________________
Other information needed to identify the organisation: company number ________________________
(the data exporter)
Name of the data importing organisation: ClickDimensions LLC
Address: 5901 Peachtree Dunwoody Road, Suite B500, Atlanta GA 30328 ……………………………………
Tel.: 404-400-5058; e-mail: firstname.lastname@example.org
Other information needed to identify the organisation:
ClickDimensions LLC (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. In case of conflicting provisions between this agreement and other agreements between parties, the provisions of this agreement take precendence solely with the subject matter hereof.
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 data1;
1 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
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.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful
forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer2
2 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.
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.
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely Belgium
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.
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 Clauses3. 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.
3 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.
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, namely Belgium
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.
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.
On behalf of the data exporter:
Name (written out in full):
On behalf of the data importer:
Name (written out in full): ClickDimensions LLC
Position: Chief Operating Officer
Address: 5901 Peachtree Dunwoody Road, Suite B500, Atlanta GA 30328
Other information necessary in order for the contract to be binding (if any):
(stamp of organisation)
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
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.
The data exporter is (please specify briefly your activities relevant to the transfer):
The data exporter is transferring data to enable use of the ClickDimensions service to integrate it with its marketing automation activities in CRM
The data importer is (please specify briefly activities relevant to the transfer):
Using the Data to provide the ClickDimensions’ services to customer.
The personal data transferred concern the following categories of data subjects (please specify):
• Personalized Emails
• Web Analytics
Categories of data
The personal data transferred concern the following categories of data (please specify):
• Personalized Emails: the recipient email address and email message with selected fields to personalize the email message.
• Web Analytics: the web pages viewed including data about the visitor, time of visit and page viewed
• Surveys: the answers to the survey questions, where the answer could be caracterized as personal data
• Forms: the fields that web visitors have entered on web forms that support marketing automation activities
• Profile: the fields that describe the profile for the web visitor and helps control how the marketing automation activities are executed
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
The ClickDimensions applications is hosted on the Microsoft Azure platform. Intelligent Dashboards is hosted on Amazon Web Services and Google Big Query.
Authorised Signature ……………………
Authorised Signature ……………………
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
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):
ClickDimensions takes privacy and protection of data seriously, and has implemented, or is in the process of implementing a variety of measures designed to ensure technical and organizational security, including but not limited to the following measures:
• SOC 2 Certification for Security, Availability, Confidentiality
• Limited access to information resources, including Multi-factor Authentication, password policies and approval process for permissions, led by the CTO organization.
• Role-based security to limit and control access for systems
• Secure and Trusted Data Centers on Microsoft Azure including Physical access controls
• 3rd Party Penetration Testing
• Anti-Malware and vulnerability scanning for all endpoints
• Secure Data Transfer and Encryption at Rest
• Company policies and procedures that apply to all employees and non-employees
• Security and legislation awareness
• Annual Privacy and Information Security Training