EU/GDPR DATA PROTECTION ADDENDUM

THIS DATA PROTECTION ADDENDUM is entered into between Upper Hand, Inc. for and on behalf of itself and its Affiliates (collectively “Upper Hand”) and the Customer (as defined in the Agreement) and is effective as of the start of the provision of the Services. Upper Hand and Customer have entered into the Upper Hand Master Services Agreement and ancillary documentation (the “Agreement”) pursuant to which Upper Hand provides Services to Customer which entail the processing of Customer Personal Data. This Addendum ensures the security and proper protection of Customer Personal Data. 

PLEASE READ THIS ADDENDUM CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. BY USING THE UPPER HAND SERVICES OR SOFTWARE IN A MANNER WHICH INVOLVES OR MAY INVOLVE THE PROCESSING OF CUSTOMER PERSONAL DATA SUBJECT OT THE EUROPEAN DATA PROTECTION LAWS BY UPPER HAND ON BEHALF OF CUSTOMER, YOU AGREE TO THE TERMS OF THIS ADDENDUM. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU OR THE ENTITY YOU ARE ACTING ON BEHALF OF DO NOT ACCEPT THE TERMS OF THIS ADDENDUM, THEN YOU MUST NOT USE THE SERVICES IN A MANNER WHICH CAUSES OR MAY CAUSE UPPER HAND TO PROCESS CUSTOMER PERSONAL DATA SUBJECT TO THE EUROPEAN DATA PROTECTION LAWS ON CUSTOMER’S BEHALF.

• DEFINITIONS

“Addendum” means this data protection addendum including its schedules and appendices.

“Adequacy Decision Territory” means any country or territory recognized by a relevant regulatory or supervisory authority as providing an adequate level of protection for personal data in accordance with European Data Protection Laws applicable to the data exporter.

“Applicable Law” means as applicable and binding on the Customer, Upper Hand and/or the Services: (a) any law, statute, regulation, byelaw or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of; (b) the common law and laws of equity as applicable to the parties from time to time; (c) any binding court order, judgment or decree; or (d) any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business.

“Customer Personal Data” means any personal data and/or personally identifiable information processed by Upper Hand (and its Subprocessors (if applicable)) on behalf of the Customer pursuant to or in connection with the provision of Services under the Agreement which is subject to the European Data Protection Laws.

“European Data Protection Laws” means any law or regulation in force from time to time relating to data privacy, data security and/or data protection, in the UK, the member states of the European Economic Area and/or Switzerland (as relevant) applicable to the Customer, Upper Hand and/or the Services, including: the EU General Data Protection Regulation (2016/679) (“GDPR”), the UK Data Protection Act 2018, any laws or regulations which implement or supplement the GDPR or the UK Data Protection Act 2018 in an applicable jurisdiction, and/or any laws that replace, extend, supplement, re-enact, consolidate or amend any of the foregoing.

“Personal Data Breach” means any confirmed accidental, unauthorized, or unlawful destruction, loss, alteration, or disclosure of, or access to, Customer Personal Data affecting Upper Hand.

“Restricted Territory” means any country, territory or jurisdiction (except for an Adequacy Decision Territory) to which the transfer of Customer Personal Data is prohibited or restricted under the European Data Protection Laws without the implementation of appropriate safeguards (including the EU Model Clauses) between the data exporter and the data importer.

“Subprocessor” means any third party authorized by Upper Hand to process Customer Personal Data on its behalf in connection with the provision of the Services.

The terms “controller”, “processor”, “personal data”, “data subject”, “supervisory authority”, “process”, “processing” and “special categories of personal data” have the meanings given to them under the European Data Protection Laws from time to time.

• Capitalized terms not defined in this Addendum (including “Affiliate”, “Platform” and “Services”) shall have the meaning given to them in the Agreement. References to the Services shall be deemed to include the Platform.

• Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.

• This Addendum and the Agreement constitute the entirety of the data processing instructions between the parties (unless and until otherwise subsequently agreed between the parties in writing).

• ROLES OF THE PARTIES AND DESCRIPTION OF PROCESSING

• Upper Hand (the processor) is appointed by Customer (the controller) to process Customer Personal Data on behalf of Customer only as is necessary to provide the Services and as may subsequently be agreed by the parties in writing.

• Each party shall comply with its obligations under the European Data Protection Laws as a controller or a processor (as applicable) in respect of the processing of Customer Personal Data under or in relation to the Agreement.

• Neither party shall do or cause to be done anything which may cause the other party to be in breach of the Data Protections Laws in relation to the processing of Customer Personal Data pursuant to the Agreement. 

• The processing activities to be performed by Upper Hand under this Agreement are:

• Subject Matter: Customer Personal Data.

• Duration: the duration of the Services under the Agreement.

• Nature and Purpose: the provision of the Services pursuant to the Agreement.

• Data Subjects: Customer’s representatives and end users of the Services.

• Categories of Customer Personal Data: the types of personal data submitted to the Services by Customer (and/or the end users of the Services) or on Customer’s behalf which may include special categories of personal data (i.e. personal data deemed “sensitive” under the Data Protection Laws).

• CUSTOMER OBLIGATIONS

• Customer warrants, represents and covenants that it complies with its obligations under the European Data Protection Laws in respect of the collection, use, and transfer of Customer Personal Data and maintains adequate records to document and evidence its compliance with its obligations under the European Data Protection Laws.

• Without prejudice to paragraph 3.1, Customer warrants, represents and covenants that is shall:

• provide an appropriate notice, compliant with the Data Protection Laws, to data subjects which identifies Customer as the controller of Customer Personal Data and sets out how it processes Customer Personal Data through the Services;

• ensure it has a valid legal basis (including, where appropriate, data subject consents) for the collection, processing and transfer of Customer Personal Data in connection with the Services and pursuant to the Agreement and this Addendum; and

• implement and maintain adequate technical and organizational measures to protect Customer Personal Data from and against any unauthorized or unlawful processing and against any accidental or unlawful destruction, damage, loss, alteration, disclosure or access.

• DATA PROCESSING

• Upper Hand shall only process Customer Personal Data:

• as needed to provide the Services; and

• in accordance with this Addendum and the Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing); 

• unless required to do otherwise by Applicable Law.

• If Upper Hand believes that any instruction received by it from Customer infringes or may infringe the European Data Protection Laws, Upper Hand shall promptly notify Customer and be entitled to cease to provide the Services until the parties have agreed appropriate amended instructions which are not infringing in the opinion of Upper Hand acting reasonably.

• In respect to Customer Personal Data, Upper Hand shall:

• provide an appropriate level of security and protection for Customer Personal Data in accordance with the requirements of the European Data Protection Laws and, without prejudice to the foregoing, implement the security measures set out in Schedule 1; 

• ensure that only those Upper Hand personnel who may be required by Upper Hand to assist in meeting its obligations under the Agreement have access to Customer Personal Data, that such Upper Hand personnel, prior to such access, have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, and take reasonable steps in accordance with industry practice to ensure the reliability of such Upper Hand personnel;

• at Customer’s cost and taking into account the nature of the processing, provide reasonable cooperation to Customer to allow Customer to comply with its obligations as a controller under the European Data Protection Laws, including in respect of carrying out data protection impact assessments, prior consultations with supervisory authorities or regulators, and responding to requests from data subjects to exercise their rights under the European Data Protection Laws; and

• at Customer’s cost and option, following the end of the provision of Services pursuant to the Agreement, either return or delete all Customer Personal Data in its possession or control, except to the extent that any Applicable Law requires Upper Hand to store or retain copies of such Customer Personal Data. For the avoidance of doubt, the requirement to return or delete Customer Personal Data shall not apply to Customer Personal Data which is archived on Upper Hand’s back-up systems.

• Upper Hand shall, in accordance with the European Data Protection Laws, make available to Customer upon reasonable request such information that is in Upper Hand’s possession or control as is necessary to demonstrate Upper Hand’s compliance with this Addendum.

• Subject to a maximum of one audit request in any 12 month period, Upper Hand shall, upon reasonable prior notice, allow for and contribute to audits conducted by Customer (or another auditor mandated by Customer) for the purpose set out in paragraph 4.4, provided Customer (or such other auditor mandated by Customer) is bound by appropriate obligations of confidentiality. Such audit request may be satisfied by Upper Hand making available to Customer a written audit report prepared by Upper Hand or an external auditor which verifies Upper Hand’s security measures and is performed in accordance with ISO 27001 standards or such other alternative standards that are substantially equivalent to IS0 27001.

• SUBPROCESSORS

• Customer generally authorizes the appointment of Subprocessors. The specific Subprocessors for the Services (which are hereby authorized by Customer) are:

• Notwithstanding any provisions of the Agreement, where Upper Hand appoints a new Subprocessor:

• Upper Hand shall provide Customer with reasonable notice of the new Subprocessor; and

• Upper Hand shall impose legally binding contract terms on the Subprocessor which are substantially the same as those contained in this Addendum.

• If Customer does not object to the appointment of a new Subprocessor within 14 days of the notice described in paragraph 5.2.1, Customer shall be deemed to consent to the appointment of the new Subprocessor.

• If Customer objects (on reasonable grounds) to the appointment of a new Subprocessor within 14 days of receipt of the notice in paragraph 5.2.1, the parties shall cooperate with each other to determine whether it is commercially and technically practicable to accommodate Customer’s objection to the new Subprocessor in relation to the provision of the Services to Customer. Where such accommodation is determined to be not practicable (in the sole discretion of and as notified in writing by Upper Hand), Customer may terminate the Agreement on 30 days’ prior written notice.

• Upper Hand acknowledges and agrees that it shall remain liable to Customer for a breach of the terms of this Addendum by a Subprocessor.

1. 1. SECURITY BREACHES

• Upper Hand shall notify Customer without undue delay on becoming aware of any Personal Data Breach. 

• Where Upper Hand becomes aware of any Personal Data Breach, it shall, without undue delay, also provide the Customer with:

• a description of the nature of the Personal Data Breach, including the categories and approximate number of data subjects and personal data records concerned;

• the likely consequences;

• a description of the measures taken or proposed to be taken to address the Personal Data Breach, including measures to mitigate its possible adverse effects.

1. 1. COOPERATION

• At Customer’s cost, Upper Hand agrees to provide such assistance reasonably required by Customer to enable Customer to respond to any request, complaint, or binding instruction concerning Customer Personal Data (“Communication”) that is received from: (a) any individual whose Personal Data is processed by Upper Hand on Customer’s behalf; or (b) any regulator or supervisory authority. If Upper Hand receives any Communication, Upper Hand shall inform Customer within a reasonable time and shall not respond to the Communication unless required by any Applicable Law or expressly authorized by Customer in writing.

• Without prejudice to paragraph 7.1, to the extent required as part of the Services, each party agrees to provide reasonable cooperation and assistance to the other party to allow the other party to comply with its obligations under the European Data Protection Laws.

1. 1. DATA TRANSFERS FOR CUSTOMER PERSONAL DATA 

• Customer consents to Upper Hand (and/or its Subprocessors) processing Customer Personal Data subject to the European Data Protection Laws in a Restricted Territory provided that:

• such transfer or export complies with Applicable Law (including the European Data Protection Laws); and 

• Upper Hand complies with paragraph 8.2 and paragraph 8.3 throughout the duration of the Agreement.

• To the extent that Customer Personal Data subject to the European Data Protection Laws is processed in a Restricted Territory:

• the terms of the transfer between Customer and Upper Hand shall be governed by the standard contractual clauses for the transfer of personal data to processors, approved by Commission Decision C(2010)593, or any updated, revised or replacement clauses approved by the Commission from time to time (the “EU Model Clauses”) attached as the Schedule and which are hereby incorporated into this Addendum; and

• in respect of transfers from Upper Hand to its Subprocessors, the terms of the transfer shall be governed by, and Customer shall comply with, the provisions of class 11 (Subprocessing) of the EU Model Clauses. Customer acknowledges and agrees that this may be achieved by Upper Hand entering the EU Model Clauses (in substantially the form entered into between Customer and Upper Hand) in the name of, and for and on behalf of, Customer and the Customer grants Upper Hand the authority to enter the EU Model Clauses within its Subprocessors for such purposes (and no other purpose).

• If, for whatever reason, the transfers of Customer Personal Data under paragraph 8.2 cease to be lawful, the parties shall use all reasonable endeavors to promptly implement an alternative lawful transfer mechanism under the European Data Protection Laws.

• LIABILITY

• Each party’s liability for one or more breaches of this Addendum shall be subject to the limitations and exclusions of liability set out in the Agreement. In no event shall either party’s liability for a breach of this Addendum exceed the liability cap set out in the Agreement. 

• Neither party limits or excludes any liability that cannot be limited or excluded under Applicable Law.

• MISCELLANEOUS

• Nothing in this Addendum reduces Upper Hand’s obligations under the Agreement in relation to the protection of Customer Personal Data or permits Upper Hand to process (or permit the processing of) Customer Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Addendum and the EU Model Clauses, the EU Model Clauses shall prevail.

• Subject to paragraph 10.1, 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 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.

• Upper Hand may, by at least 30 calendar days’ written notice to Customer, propose any variations to this Addendum which it reasonably considers to be necessary to address the requirements of the European Data Protection Laws, whereupon the parties shall negotiate in good faith with a view to promptly agreeing variations designed to address the requirements identified in the notice as soon as reasonably practicable.

• Either party may provide this Addendum and a copy of the relevant privacy and security provisions of the Agreement to a regulator or supervisory authority if required or permitted by Applicable Law.

• By clicking through and accepting this Addendum when signing up for the Services, the parties hereby enter this Addendum and such click-through acceptance shall be deemed to constitute signature and acceptance of the EU Model Clauses set out in Schedule 2 and incorporated herein. 

• Customer agrees to the use of electronic documents and records in connection with this Addendum and all future documents and records in connection therewith—including this electronic signature and disclosure notice—and that this use satisfies any requirement that Upper Hand provides Customer these documents and their content in writing. If Customer does not agree, do not enter into this Agreement. Customer has the right to receive a paper copy of all documents and records if and to the extent required under applicable law. You may (a) obtain a paper copy of any document or record (free of charge), (b) withdraw your consent to the use of electronic documents and records, or (c) update your contact information through your account. To receive or access electronic documents and records, you must have the following equipment and software: (x) a device that is capable of accessing the Internet, (y) a compatible Internet browser, and (z) software that permits you to receive and access Portable Document Format or “PDF” files, such as Adobe Acrobat Reader 8.0 or higher. To retain documents and records, your device must have the ability to download and store PDF files.

Schedule 1

Upper Hand Security Measures

In accordance with the European Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed, Upper Hand shall implement appropriate technical and organizational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(a) to 32(d) (inclusive) of the GDPR. Without prejudice to its other obligations, Upper Hand shall implement and maintain at least the following technical and organizational security measures to protect Customer Personal Data:

• Physical access control

Technical and organizational measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers and related hardware), where Customer Personal Data is processed, include: 

• Establishing secure areas, restriction of access paths; 
• Establishing access authorizations for employees and third parties;
• Key management, card-keys procedures;
• Door locking (electric door openers etc.);
• Security staff, janitors;
• Surveillance facilities, alarm system; and
• Securing decentralized data processing equipment and personal computers.

• Virtual access control 

Technical and organizational measures to prevent data processing systems from being used by unauthorized persons include: 

• User identification and authentication procedures;
• ID/password security procedures (special characters, minimum length, change of password);
• Automatic blocking (e.g. password or timeout);
• Monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous passwords attempts; and
• Creation of one master record per user, user master data procedures, per data processing environment.

• Data access control

Technical and organizational measures to ensure that persons entitled to use a data processing system gain access only to such Customer Personal Data in accordance with their access rights, and that Customer Personal Data cannot be read, copied, modified or deleted without authorization, include: 

• Internal policies and procedures;
• Control authorization schemes;
• Differentiated access rights (profiles, roles, transactions and objects); 
• Monitoring and logging of accesses;
• Disciplinary action against employees who access Customer Personal Data without authorization;
• Reports of access;
• Access procedure;
• Change procedure;
• Deletion procedure; and
• Encryption.

• Disclosure control 

Technical and organizational measures to ensure that Customer Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Customer Personal Data are disclosed, include: 

• Encryption/tunneling;
• Logging; and
• Transport security.

• Entry control 

Technical and organizational measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems, include: 

• Logging and reporting systems; and
• Audit trails and documentation.

• Control of instructions 

Technical and organizational measures to ensure that Customer Personal Data is processed solely in accordance with the instructions of the data controller include: 

• Unambiguous wording of the contract; and
• Criteria for selecting subprocessor(s).

• Availability control 

Technical and organizational measures to ensure that Customer Personal Data is protected against accidental destruction or loss (physical/logical) include: 

• Backup procedures;
• Mirroring of hard disks (e.g. RAID technology);
• Uninterruptible power supply (UPS);
• Remote storage;
• Anti-virus/firewall systems; and
• Disaster recovery plan.

• Separation control 

Technical and organizational measures to ensure that Customer Personal Data collected for different purposes can be processed separately include: 

• Separation of databases;
• Segregation of functions (production/testing); and
• Procedures for storage, amendment, deletion, transmission of data for different purposes.

Schedule 2 

EU Model Clauses

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

Name of the data exporting organization: “Customer” as identified in the DPA, for itself and/or on behalf of its relevant Affiliate(s) in the EEA, the UK or Switzerland (as applicable).

(the data exporter)

And

Name of the data importing organization: Upper Hand, Inc. whose principal place of business is at 129 East Market Street, Suite 400, Indianapolis, IN 46204 for itself and on behalf of its Affiliates.

(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;

1. ‘the data exporter’ means the controller who transfers the personal data;

1. ‘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;

1. ‘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;

1. ‘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;

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

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.

1. 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. 

1. 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. 

1. 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;

1. 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;

1. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

1. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

1. that it will ensure compliance with the security measures;

1. 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;

1. 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;

1. 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;

1. 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

1. 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;

1. 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;

1. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

1. 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,

1. any accidental or unauthorised access, and

1. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

1. 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;

• 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;

1. 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;

1. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

1. that the processing services by the subprocessor will be carried out in accordance with Clause 11;

1. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

1. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

1. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

1. to refer the dispute to the courts in the Member State in which the data exporter is established.

1. 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.

1. 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.

1. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

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

Clause 10

Variation of the contract

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

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement. 

1. 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.

1. 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.

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

Clause 12

Obligation after the termination of personal data processing services

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

1. 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 and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is “Customer” as identified in the Addendum and/or its relevant Affiliate(s) in the EEA, the UK or Switzerland (as applicable).

Data importer

The data importer is Upper Hand, Inc. and/or its Affiliates, the provider of the Services.

Data subjects

The personal data transferred concern the categories of data subjects as set out in paragraph 2.4.4 of the Addendum.

Categories of data

The personal data transferred concern the categories of data as set out in paragraph 2.4.5 of the Addendum.

Special categories of data (if appropriate)

The personal data transferred concern the special categories of data as set out in paragraph 2.4.5 of the Addendum.

Processing operations

The personal data transferred will be subject to basic processing activities including computation, storage and other Services and as initiated by the Customer from time to time.

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Please see Schedule 1 of the Addendum.