Data processing agreement

This Data Processing Agreement and its Annexes (“DPA”) reflect the terms with respect to the Processing of Personal Data by us on behalf of you in connection with the Services under the terms of use between you and us (also referred to in this DPA as the “Terms”). This DPA is supplemental to, and forms an integral part of the Terms and is effective upon its incorporation into the Terms. In case of any conflict or inconsistency with the Terms, this DPA will take precedence over the Terms to the extent of such conflict or inconsistency.

What we mean when we say...

Definitions

"California Personal Information" means Personal Data that is subject to the protection of the California Consumer Privacy Act of 2018("CCPA").

"Consumer", "Business", "Sell" and "Service Provider" will have the meanings given to them in the CCPA.

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Terms, including without limitation European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated or replaced from time to time.

“Data Subject” means the individual to whom Personal Data relates.

"Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

“European Data” means Personal Data that is subject to the protection of European Data Protection Laws.

"European Data Protection Laws" means data protection laws applicable in Europe, including each case below, as they may be amended, superseded or replaced:

  1. General Data Protection Regulation("GDPR") - Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data
  2. Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
  3. Applicable national implementations of (i) and (ii); or in respect of the United Kingdom, any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union
  4. Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance

“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

"Permitted Affiliates" means any of your Affiliates that

  1. are permitted to use the Services pursuant to the Terms
  2. qualify as a Controller of Personal Data Processed by us
  3. are subject to European Data Protection Laws

“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services. This does not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

“Standard Contractual Clauses” means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out at Annex 3; as may be amended, superseded or replaced.

“Sub-Processor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Services under the Terms. Sub-Processors may include third parties or our Affiliates but will exclude our employees or consultants.

You must comply with the law.

Your responsibilities

Compliance with Laws:
Within the scope of the Terms and use of the Services, you will be responsible for complying with all requirements that apply under applicable Data Protection Laws with respect to Processing of Personal Data and the Instructions issued to us. You are solely responsible for:

  1. the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data
  2. complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for marketing purposes)
  3. ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the Terms (including this DPA)
  4. ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws
  5. complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.
You will inform us without undue delay if you are not able to comply with the responsibilities under this section or applicable Data Protection Laws.

Controller Instructions:
The parties agree that the Terms (including this DPA), together with your use of the Service in accordance with the Terms, constitute your complete and final Instructions to us in relation to the Processing of Personal Data. Additional instructions outside the scope of the Instructions shall require prior written agreement between us and you.

We will protect data and comply with the law.

Our responsibilities

Compliance with Instructions:
We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.

Conflict of Laws:
If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will promptly notify you of that legal requirement to the extent permitted by the applicable law and where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Terms for any failure to perform the applicable Services until such time as you issue new lawful Instructions with regard to the Processing.

Security:
We will implement and maintain appropriate security measures to protect Personal Data from Personal Data Breaches, as described under Annex 2 to this DPA ("Security Measures"). We may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.

Confidentiality:
We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.

Personal Data Breaches:
We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.

Deletion of Personal Data:
You may request the deletion of your Vimkit account at any time as specified in the Terms. We will delete all Customer Data, including Personal Data Processed pursuant to this DPA, on termination of your account in accordance with the procedures and timeframes set out in the Terms. This requirement shall not apply to the extent we are required by applicable law to retain some or all of the Customer Data.

We'll help you respond to requests when needed.

Data subject requests

To the extent that you are unable to independently address a Data Subject Request through the Service, then upon your written request to legal@vimkit.com we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Terms. You shall reimburse us for reasonable costs arising from this assistance.

If a Data Subject Request or other communication regarding the Processing of Personal Data under the Terms is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

Our sub-processors protect your data too.

Sub-processors

You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors, the third parties listed in Annex 4 to this DPA. We require data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors.

We process and transfer data globally.

Data transfers

You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Service in accordance with the Terms, and in particular that Personal Data will be transferred to and processed by us in the United States and to other jurisdictions where our Affiliates and Sub-Processors have operations. We will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

Conditions that apply only to European Data

Additional provisions for European data

Roles of the Parties:
When Processing European Data in accordance with your Instructions, you agree that you are the Controller of European Data and we are the Processor.

Instructions:
If we believe that your Instruction infringes European Data Protection Laws (where applicable), we will inform you without delay.

Notification and Objection to New Sub-Processors:
We will notify you of any changes to Sub-processors by updating Annex 4 to this DPA and will give you the opportunity to object to the engagement of the new Sub-Processor on reasonable grounds relating to the protection of Personal Data within 7 days after updating Annex 4 to this DPA. If you do notify us of such an objection, we will discuss with you in good faith with a view to achieving a reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either not appoint the new Sub-Processor, or permit you to suspend or terminate the Service in accordance with the Terms without liability to either party. You will still be responsible for any fees incurred by you prior to termination.

Data Protection Impact Assessments and Consultation with Supervisory Authorities:
To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws.

Transfer Mechanisms for Data Transfers:

  • We will not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless we first take all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.
  • You acknowledge that in connection with the performance of the Services, we are a recipient of European Data in the United States. We agree to abide by and process European Data in compliance with the Standard Contractual Clauses.
  • You agree that for the purposes of the descriptions in the Standard Contractual Clauses, we will be deemed the "data importer" and you will be deemed the "data exporter" (even if you yourself are located outside Europe and/or are acting as a processor on behalf of third party controllers). Where the contracting entity under the Terms is a third-party, you provide such contracting entity with a mandate to enter into the Standard Contractual Clauses with us. Such contracting entity (not us) will remain fully and solely responsible and liable to you for the performance of the Standard Contractual Clauses and you will direct any instructions, claims or enquiries in relation to the Standard Contractual Clauses to such contracting entity. If and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the Standard Contractual Clauses will prevail to the extent of such conflict.

Conditions that apply only to California personal information

Additional provisions for California personal information

Roles:
When processing California Personal Information in accordance with your Instructions, you agree that you are a Business and we are a Service Provider for the purposes of the CCPA.

Responsibilities:
You agree that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Services under the Terms (the "Business Purpose")  or as otherwise permitted by the CCPA.

We can make changes to the DPA.

Amendments, severability, limitation of liability and governing law

We reserve the right to make any updates and changes to this DPA. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected. Each party to this DPA and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the Terms.  This DPA will be governed by applicable law specified in the Terms, unless required otherwise by Data Protection Laws.

The DPA applies to you and your affiliates.

Parties to the DPA

Permitted Affiliates:
By agreeing to the Terms, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of your Permitted Affiliates, thereby establishing a separate DPA between us and each such Permitted Affiliate subject to the Terms and the ‘General Provisions’ and ‘Parties to this DPA’ sections of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Terms. For the purposes of this DPA only, and except where indicated otherwise, the terms “you” and “your” will include you and such Permitted Affiliates.

Authorization:
By agreeing to this DPA you represent that you ate authorized to agree to and enter into this DPA for and on behalf of yourself and, as applicable, each of your Permitted Affiliates.

Remedies:
Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against us directly by itself, you agree that only the entity that is the contracting party to the Terms will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and the entity that is the contracting party to the Terms will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. You are responsible for coordinating all communication with us under the DPA and will be entitled to make and receive any communication related to this DPA on behalf of your Permitted Affiliates.  You agree that you will, take all reasonable measures to limit any impact on us and our Affiliates.

Details of how we process your data.

Annex 1 - Details of processing

Nature and purpose of processing:
We will Process Personal Data as necessary to provide the Services pursuant to the Terms

Duration of processing:
Subject to the 'Deletion of Personal Data' section of this DPA, we will Process Personal Data as long as we provide the Service to you. 

Categories of data subjects:
You may submit Personal Data in the course of using the Service, the extent of which is determined and controlled by you in your sole discretion, and which includes the following categories of Data Subjects: Your end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.

Categories of personal data:
You may submit Personal Data to the Services, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data: 

  • Contact information
  • Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Service

Special categories of data:
None

Processing operations:
Personal Data will be Processed in accordance with the Terms (including this DPA) and may be subject to the following Processing activities:

  • Storage and other Processing necessary to provide, maintain and improve the Services provided to you
  • Disclosure in accordance with the Terms (including this DPA) and/or as compelled by applicable laws

Details of how we keep your data safe.

Annex 2 - Security measures

Access control:

  • Cloud Infrastructure: We host our Service with outsourced cloud infrastructure providers. Additionally, we maintain contractual relationships with vendors in order to provide the Service in accordance with our DPA. We rely on contractual agreements and privacy policies in order to protect data processed or stored by these vendors.
  • Authentication: We use an outsourced authentication provider for our Service. Customers who interact with the Service via the user interface must authenticate before accessing non-public Customer Data.
  • Authorization: Customer Data is stored in cloud-based storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in our Service is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
  • Application Programming Interface (API) access: Public APIs may be accessed using an API key or through Oauth authorization

Transmission control:

  • In-transit: We enforce HTTPS encryption (also referred to as SSL or TLS) on our Service. Our HTTPS implementation uses industry standard algorithms and certificates.
  • At-rest: We have implemented technologies to ensure that stored data is encrypted at rest. 

Input control:

  • Detection: We designed our infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Our personnel, including security, operations, and support personnel, are responsive to known incidents.
  • Response and tracking: We maintain a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, we will take appropriate steps to minimize product and Customer damage or unauthorized disclosure. Notification to you will be in accordance with the Terms. 

Availability control:

  • Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure.
  • Online replicas and backups: All databases are backed up and maintained using at least industry standard methods. Our Service is designed to ensure redundancy and seamless failover. The server instances that support the Service are also architected with a goal to prevent single points of failure. This design assists our operations in maintaining and updating the Service while limiting downtime.

Details of how we transfer data to other countries.

Annex 3 - 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,
The Customer, as defined in the Terms (the “data exporter”)
And
Eliron Advisory Inc., 1950 W Corporate Way #15789 Anaheim CA 92801 (the “data importer”)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1 - Definitions
For the purposes of the Clauses:

  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. 'the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. 'technical and organisational security measure’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2 - Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3 - Third party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2) and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4 - Obligations of the data exporter
The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(2) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5 - Obligations of the data importer
The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    2. any accidental or unauthorized access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor Terms it concludes under the Clauses to the data exporter.

Clause 6 - Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor 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 sub-processor 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 or 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7 - Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8 - Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9 - Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10 - Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11 - Sub-processing

  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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

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

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses').
Defined terms used in this Appendix shall have the meaning given to them in the Terms (including the DPA).

  • Data exporter: The legal entity specified as "Customer" in the DPA. 
  • Data importer: Eliron Advisory, Inc.
  • Data subjects: See Annex 1 of the DPA
  • Categories of data: See Annex 1 of the DPA 
  • Special categories of data (if appropriate): None
  • Purposes of Processing: To provide the Services to data exporter in accordance with the Terms.  
  • Processing operations: See Annex 1 of the DPA

Appendix 2
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses').
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):
Please see Annex 2 of the DPA.

Appendix 3
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses').
This Appendix sets out the parties' interpretation of their respective obligations under specific terms of the Clauses. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses. For the purposes of this Appendix, "DPA" means the Data Processing Agreement in place between Customer and Eliron Advisory Inc and to which these Clauses are incorporated and "Terms" shall have the meaning given to it in the DPA.

  1. Clause 4(h) and 8: Disclosure of these Clauses
    Data exporter agrees that these Clauses constitute data importer's Confidential Information as defined in the Terms and may not be disclosed by data exporter to any third party without data importer's prior written consent unless permitted pursuant to Terms. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.
  2. Clauses 5(a) and 5(b): Suspension of data transfers and termination
    The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses. The parties acknowledge that if data importer cannot provide such compliance in accordance with Clause 5(a) and Clause 5(b) for whatever reason, the data importer 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 the affected parts of the Services in accordance with the Terms. If the data exporter intends to suspend the transfer of personal data and/or terminate the affected parts of the Services, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”). If required, the parties shall reasonably cooperate with each other during the Cure Period to agree what additional safeguards or other measures, if any, may be reasonably required to ensure the data importer's compliance with the Clauses and applicable data protection law. If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend and/or terminate the affected part of the Services in accordance with the provisions of the Terms without liability to either party (but without prejudice to any fees incurred by the data exporter prior to suspension or termination). The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.
  3. Clause 5(f): Audit
    The parties agree that data importer will make all information reasonably necessary to demonstrate compliance with this DPA available to data exporter. Data exporter agrees to exercise audit rights as described below:
    • Data exporter acknowledges that the Service is hosted by cloud infrastructure partners who maintain independently validated security programs (including SOC 2 and ISO 27001). Upon request, data importer will supply (on a confidential basis) any relevant security reports provided by their cloud infrastructure partners.
    • Further, at data exporters written request, data importer will provide written responses (on a confidential basis) to all reasonable requests for information necessary to confirm data importer's compliance with this DPA, provided that data exporter will not exercise this right more than once per calendar year.
  4. Clause 5(j): Disclosure of subprocessor agreements
    • The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.
    • The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
    • Where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall provide publicly available privacy policies and terms of service of the subprocessor to data exporter.
  5. Clause 6: Liability
    Any claims brought under the Clauses shall be subject to the Terms, including but not limited to, the exclusions and limitations set forth in the Terms. In no event shall the data exporter limit its liability with respect to any data subject rights under these Clauses.
  6. Clause 11: Onward subprocessing
    The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the data exporter may provide a general consent to onward subprocessing by the data importer. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors.
  7. Clause 12: Obligation after the termination of personal data-processing services
    Data importer agrees that the data exporter will fulfil its obligation to return or destroy all the personal data on the termination of the provision of data-processing services by complying with the 'Deletion of Personal Data' section of the DPA.

The sub-processors we use.

Annex 4 - Sub-processors

  • Amazon Web Services - Cloud Compute, Storage and Authorization Infrastructure
  • Google - Authentication, Analytics, Communication and Collaboration
  • Stripe - Payment Processing
  • Twilio - Email and Text Notifications
  • Netlify - Hosting and DNS
  • Sentry - Error Monitoring

Last updated on Sep 2, 2020.