NXTSTIM GDPR DATA PROTECTION ADDENDUM
This Data Protection Addendum (“Addendum”) forms part of the Master Subscription Agreement (“Principal Agreement”) between: (i) NXTSTIM LLC and its subsidiaries and affiliates, as defined in the Principal Agreement, (“NXTSTIM”); and (ii) You, as defined in the Principal Agreement, (“You” or “Your”); and further extends between You and Lexington Wellness Holdings Inc. d/b/a CoachCare and its subsidiaries and affiliates (NXTSTIM and Lexington Wellness Holdings Inc. d/b/a CoachCare collectively referred to as “NXTSTIM Group” for purposes of the Addendum) when the GDPR applies to Your use of the Services, as defined in the Principal Agreement, to process Your Personal Data.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
1.1. In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1. “Applicable Laws” means (a) European Union or Member State laws with respect to any of Your Personal Data in respect of which You are subject to EU Data Protection Laws; and (b) any other applicable law with respect to any of Your Personal Data in respect of which You are subject to any other Data Protection Laws;
1.1.2. “Your Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of You or Your customers pursuant to or in connection with the Principal Agreement;
1.1.3. “Contracted Processor” means NXTSTIM Group or a Subprocessor;
1.1.4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5. “EEA” means the European Economic Area;
1.1.6. “EU Data Protection Laws” means the GDPR and laws implementing or supplementing the GDPR;
1.1.7. “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8. “Restricted Transfer” means:
18.104.22.168 a transfer of Your Personal Data from You to a Contracted Processor; or
22.214.171.124 an onward transfer of Your Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer 1restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 5.4.3 or 11 below;
1.1.9 “Services” means the services and other activities to be supplied to or carried out by or on behalf of NXTSTIM Group for You pursuant to the Principal Agreement;
1.1.10 “Standard Contractual Clauses” means the contractual clauses set out in Annex 3, amended as indicated (in square brackets and italics) in that Annex and under section 12.4;
1.1.11 “Subprocessor” means any person (including any third party, but excluding an employee of NXTSTIM Group or any of its sub-contractors) appointed by or on behalf of NXTSTIM Group to Process Personal Data on behalf of You in connection with the Principal Agreement; and
1.2. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3. The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Processing of Your Personal Data
2.1. This Addendum applies when Your Personal Data is processed by NXTSTIM Group. In this context, NXTSTIM Group will act as Processor to You who may act either as Controller or Processor with respect to Your Personal Data.
2.2. NXTSTIM Group shall:
- 2.2.1 comply with all applicable Data Protection Laws in the Processing of Your Personal Data; and
- 2.2.2 not Process Your Personal Data other than on Your documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case NXTSTIM Group shall to the extent permitted by Applicable Laws inform You of that legal requirement before the relevant Processing of that Personal Data.
2.3. You shall instruct NXTSTIM Group (and authorise NXTSTIM Group to instruct each Subprocessor) to:
- 2.3.1 Process Your Personal Data; and
- 2.3.2 in particular, transfer Your Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement.
2.4. Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of Your Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). You may make reasonable amendments to Annex 1 by written notice to NXTSTIM Group from time to time as You reasonably consider necessary to meet those requirements. Nothing in Annex 1 (including as amended 2pursuant to this section 2.3) confers any right or imposes any obligation on any party to this Addendum.
3. NXTSTIM Personnel
NXTSTIM Group shall take commercially reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Your Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access Your Personal Data that is relevant, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, NXTSTIM Group shall in relation to Your Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In particular, NXTSTIM Group has implemented and will maintain the technical and organizational measures set out in Annex 2.
4.2. In assessing the appropriate level of security, NXTSTIM Group shall take account in particular the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1. You authorize NXTSTIM Group to appoint (and permits each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the Principal Agreement.
5.2. NXTSTIM Group may continue to use those Subprocessors already engaged by NXTSTIM Group as at the date of this Addendum, subject to NXTSTIM Group in each case as soon as practicable meeting the obligations set out in section 5.4.
5.3. The NXTSTIM Group website (currently posted at www.coachcare.com/gdpr/subprocessors) lists Subprocessors that are currently engaged by NXTSTIM to carry out Processing activities on Your Personal Data. Before NXTSTIM Group engages any new Subprocessor to carry out processing activities on Your Personal Data, NXTSTIM Group shall update the applicable website and give You written notice of the appointment of the new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 10 days of receipt of that notice, You notify NXTSTIM Group in writing of any objections (on reasonable grounds) to the proposed appointment:
- 5.3.1 NXTSTIM Group shall not appoint that proposed Subprocessor to carry out Processing activities on Your Personal Data (or disclose any of Your Personal Data to that Subprocessor) until commercially reasonable steps have been taken to address the objections raised by You and You have been provided with a reasonable written explanation of the steps taken; and
- 5.3.2 if within 10 days of receipt of the written explanation in section 5.3.1, You notify NXTSTIM Group in writing that You find such steps are insufficient to address Your 3objections (on reasonable grounds), NXTSTIM Group shall work with You in good faith to make available a commercially reasonable change in the provision of the Services to You which avoids the use of that proposed Subprocessor.
5.4. With respect to each Subprocessor, NXTSTIM Group shall:
- 5.4.1 before the Subprocessor first Processes Your Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Your Personal Data required by the Principal Agreement;
- 5.4.2 ensure that the arrangement between on the one hand (a) NXTSTIM Group, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Your Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
- 5.4.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand NXTSTIM Group, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor; and
- 5.4.4 provide to You for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as You may request from time to time.
5.5. NXTSTIM Group shall ensure that each Subprocessor performs the obligations under sections 2, 3, 4, 6, 7, 8 and 10.1, as they apply to Processing of Your Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of NXTSTIM Group.
6. Data Subject Rights
6.1. Taking into account the nature of the Processing, NXTSTIM Group shall provide commercially reasonable assistance to You by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Your obligations, as reasonably understood by You, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2. NXTSTIM Group shall:
- 6.2.1 promptly notify You if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Your Personal Data; and
- 6.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of You or as required by Applicable Laws to which the Contracted Processor is subject, in which case NXTSTIM Group shall to the extent permitted by Applicable Laws inform You of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1. NXTSTIM Group shall notify You without undue delay upon NXTSTIM Group or any Subprocessor becoming aware of a Personal Data Breach affecting Your Personal Data, providing You with sufficient information to allow You to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2. NXTSTIM Group shall co-operate with You and take such commercially reasonable steps as are directed by You to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
7.3. You agree that:
- 7.3.1 An unsuccessful Personal Data Breach will not be subject to this Section 7. An unsuccessful Personal Data Breach is one that results in no unauthorised access to Your Personal Data or to any of NXTSTIM Group’s equipment or facilities storing Your Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and
- 7.3.2 NXTSTIM Group’s obligation to report or respond to a Personal Data Breach under this Section 7 is not and will not be construed as an acknowledgement by NXTSTIM Group of any fault or liability of NXTSTIM Group with respect to the Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
NXTSTIM Group shall provide commercially reasonable assistance to You with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which You reasonably consider to be required of You by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Your Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or Return of Your Personal Data
9.1. Subject to sections 9.2 and 9.3 NXTSTIM Group shall promptly and in any event within 90 days of the date of cessation of any Services involving the Processing of Your Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of Your Personal Data.
9.2. Subject to section 9.3, You may in Your absolute discretion by written notice to NXTSTIM Group within 10 days of the Cessation Date require NXTSTIM Group to (a) return a complete copy of all Your Personal Data to You by secure file transfer in such format as is reasonably notified by You to NXTSTIM Group; and (b) delete and procure the deletion of all other copies of Your Personal Data Processed by any Contracted Processor. NXTSTIM Group shall comply with any such written request within 90 days of the Cessation Date.
9.3. Each Contracted Processor may retain Your Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that NXTSTIM Group shall ensure the confidentiality of all such of Your Personal Data and shall ensure that such of Your Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
9.4. NXTSTIM Group shall provide written certification to You that it has fully complied with this section 9 within 90 days of the Cessation Date.
10. Audit Rights
10.1. Subject to sections 10.2 and 10.3, NXTSTIM Group shall make available to You on request and on a commercially reasonable basis all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, at your expense, including but not limited to time reasonably expended by NXTSTIM Group for such audits at NXTSTIM Group’s then-current professional services rates (made available to You upon request), by You or an auditor mandated by You in relation to the Processing of Your Personal Data by the Contracted Processors. request). Prior to commencement of work, NXTSTIM Group and You shall mutually agree upon scope, timing and duration of the audit.
10.2. Information and audit rights of You only arise under section 10.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
10.3. You when undertaking an audit shall give NXTSTIM Group reasonable notice of any audit or inspection to be conducted under section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Any such damage, injury or disruption caused by You or an auditor mandated by You shall be reimbursed by You to the Contracted Processors. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
- 10.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
- 10.3.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and You when undertaking an audit have given notice to NXTSTIM Group that this is the case before attendance outside those hours begins; or
10.3.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any period of three calendar years, except for any additional audits or inspections which:
- 10.3.3.1 You when undertaking an audit reasonably consider necessary because of genuine concerns as to NXTSTIM Group’s compliance with this Addendum; or
- 10.3.3.2 You are required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where You when undertaking an audit have identified Your concerns or the relevant requirement or request in its notice to NXTSTIM Group of the audit or inspection.
- 10.3.4 NXTSTIM Group shall immediately inform You if, in its opinion, an instruction pursuant to this section 10 (Audit Rights) infringes the GDPR or other EU or Member State data protection provisions.
11. Restricted Transfers
11.1. Subject to section 11.3, You (as “data exporter”) and NXTSTIM Group (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from You to NXTSTIM Group.
11.2. The Standard Contractual Clauses shall come into effect under section 11.1 on the later of:
- 11.2.1 the data exporter becoming a party to them;
- 11.2.2 the data importer becoming a party to them; and
- 11.2.3 commencement of the relevant Restricted Transfer.
11.3. Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
Governing law and jurisdiction
12.1. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
- 12.1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
- 12.1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
12.2. Nothing in this Addendum reduces NXTSTIM’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits NXTSTIM Group to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
12.3. Subject to section 12.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
Changes in Data Protection Laws, etc.
12.4. You may:
- 12.4.1 by at least 90 days’ written notice to NXTSTIM Group from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 11.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
- 12.4.2 propose any other variations to this Addendum which You reasonably consider to be necessary to address the requirements of any Data Protection Law.
12.5. If You give notice under section 12.4.1, You shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by NXTSTIM Group to protect the Contracted Processors against additional risks associated with the variations made under section 12.4.1.
12.6. If You give notice under section 12.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Your notice as soon as is reasonably practicable.
12.7. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF YOUR PERSONAL DATA
This Annex 1 includes certain details of the Processing of Your Personal Data as required by Article 28(3) GDPR.
Subject matter of the Processing of Your Personal Data
The subject matter of the Processing of Your Personal Data is Your Personal Data provided to the Services by You or Your customers.
Duration of the Processing of Your Personal Data
The duration of the Processing of Your Personal Data is determined by You.
The nature of the Processing of Your Personal Data
The nature of the Processing of Your Personal Data is the Services initiated by You or Your customers.
The purpose of the Processing of Your Personal Data
The purpose of the Processing of Your Personal Data is the provision of the Services initiated by You or Your customers.
The types of Your Personal Data to be Processed
The types of Your Personal Data to be Processed are Your Personal Data, including health data, provided to the Services by You or Your customers.
The categories of Data Subject to whom Your Personal Data relates
The categories of Data Subject to whom Your Personal Data relates are You and Your customers.
The obligations and rights of You
The obligations and rights of You are set out in the Principal Agreement and this Addendum.
ANNEX 2: NXTSTIM SECURITY STANDARDS
This Annex 2 includes certain details of the technical and organizational measures implemented and maintained by NXTSTIM Group to ensure an appropriate level of security for Your Personal Data.
1. Technical Measures
1.1. NXTSTIM Group allows only explicitly authorized IT personnel to have administrative access to NXTSTIM Group servers.
1.2. NXTSTIM Group computers are password-protected and utilize reasonably strong passwords.
1.3. NXTSTIM Group computers utilize automatic log-off when the computers are inactive.
1.4. NXTSTIM Group strictly permissions and restricts access to Your Personal Data to only those individuals who specifically receive Your consent to access it.
1.5. NXTSTIM Group reviews server software and applications regularly for security risks and updates them routinely.
1.6. NXTSTIM Group maintains a full audit log history of access to all API endpoints, servers, and databases.
1.7. NXTSTIM Group utilizes a user de-identification scheme across data layers to ensure Your Personal Data is anonymized where necessary.
1.8. NXTSTIM Group utilizes encryption for all Your Personal Data in transit and at rest.
1.9. NXTSTIM Group enforces automatic log-off of accounts within the Services after predetermined time periods.
1.10. NXTSTIM Group securely stores multiple database backups across several time periods.
2. Organizational Measures
2.1. NXTSTIM Group requires management authorization to Process Your Personal Data, and such Processing must only include the minimum data necessary to accomplish an appropriate task.
2.2. NXTSTIM Group maintains and enforces policies and procedures regarding the appropriate security of NXTSTIM Group’s computer hardware. NXTSTIM Group requires employees to never leave their computers unsecured, and at the end of each workday they must ensure their computers are stored in a locked room.
2.3. NXTSTIM Group maintains and enforces policies and procedures regarding the appropriate conduct of conversations between employees that concern Your Personal Data. NXTSTIM restricts conversations to include the minimum necessary data to accomplish an appropriate task.
2.4. NXTSTIM Group maintains and enforces policies and procedures regarding the appropriate Processing of Your Personal Data.
2.5. NXTSTIM Group maintains and enforces policies and procedures regarding appropriate responses to data breaches.
2.6. NXTSTIM Group requires regular employee training regarding all policies and procedures, including the Processing of Your Personal Data.
2.7. NXTSTIM Group management performs regular manual reviews of accounts with top-level permissions and access to critical systems.
3. Continued Evaluation
3.1. NXTSTIM Group conducts periodic reviews of the security of its Services and adequacy of its information security program as measured against industry security standards and NXTSTIM Group policies and procedures.
3.2. NXTSTIM Group will continually evaluate the security of its Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
ANNEX 3: STANDARD CONTRACTUAL CLAUSES
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The entity identified as “You” in the
Addendum (the “data exporter”)
The entities identified as “NXTSTIM Group” in the
Addendum (the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the clauses:
a. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/ EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
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 12exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
e. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
f. ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, 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 organizational security measures specified in Appendix 2 to this contract;
d. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
e. that it will ensure compliance with the security measures;
f. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
g. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
h. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
i. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
a. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
b. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
c. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
d. that it will promptly notify the data exporter about:
- 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,
- any accidental or unauthorized access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
d. 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;
e. 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 15of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
f. 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;
g. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- 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 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 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 16Clauses 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
3. 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.
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 Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/ or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed 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 You as defined in the Addendum.
The data importer is NXTSTIM Group as defined in the Addendum.
The data subjects are You and Your customers as defined and referenced in the Addendum.
Categories of data
The categories of data are Your Personal Data as defined in the Addendum.
Special categories of data (if appropriate)
The special categories of data are health data within Your Personal Data as defined in the Addendum.
The personal data transferred will be subject to the processing operations included in the Services as defined in the Addendum.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
The technical and organizational security measures implemented by the data importer are as described in the Addendum.