All Order Forms are made pursuant and subject to the SaaS Services Agreement (“Agreement”), which Company has reviewed and agrees is a binding agreement between Company and Sustain.Life, Inc. (“Sustain.Life”) for the Service. The Agreement is incorporated herein by reference. In the event of any conflict between an Order Form and the Agreement, the Agreement will control. Capitalized terms not defined in an Order Form have the meanings given to them in the Agreement.
This Agreement is made between Sustain.Life and Company and will be effective upon Company’s initial access to the Service through any online provisioning, registration, or order process. This Agreement governs Company’s use of the Service.
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
"Company Data" means all data or information submitted by Company to the Service.
"Order Form" means the document(s) for placing subscription orders entered into between Company and Sustain.Life. All Order Forms are incorporated into this Agreement by reference.
"Users" means Company, and individuals authorized by Company, to use the Service.
2.1 Subject to the terms of this Agreement and each Order Form, Sustain.Life grants Company a non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term specified in the Order Form, to access and use the Service for Company’s internal business purposes. Company may permit Users to use the Service and will be responsible for their compliance with this Agreement. Usage is limited to any metrics and volumes specified in an Order Form. Company agrees that its subscription to the Service is neither contingent on the delivery of any future functionality or features nor dependent on any public comments made by Sustain.Life regarding the same.
2.2 Company will (i) be responsible for the accuracy and legality of, and the means by which Company acquires, Company Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and (iii) use the Service only in accordance with this Agreement and applicable laws and regulations and otherwise comply with applicable laws and regulations in connection with this Agreement.
2.3 Company will not (i) make the Service available to anyone other than Users, (ii) distribute, sell, resell, rent, or lease the Service, (iii) store or transmit infringing or otherwise unlawful material or store or transmit malicious code or material on the Service, (iv) interfere with or disrupt the integrity, security, or performance of, or data contained on, the Service, or (v) disassemble, decompile, reverse-engineer, copy, translate, or make derivative works of or remove any proprietary notices or labels from the Service.
2.4 The Service may contain links to, integrate with, or provide the ability for Company or Users to access third party products, services, or websites. Sustain.Life will not be responsible for any such third party products, services, or websites. Sustain.Life may update, upgrade, revise, or change the Service and its features and functionality (collectively, “Updates”) at any time, provided that Sustain.Life will not materially decrease the functionality of the Service during a Subscription Term. Updates are considered part of the Service.
3.1 As between the parties, Company retains all rights in and related to Company Data. Company will collect and maintain any personal data in Company Data in compliance with all applicable data privacy and protection laws and regulations. Company grants Sustain.Life nonexclusive right to Company Data to provide the Service. Company may access, export, and retrieve Company Data at any time during a Subscription Term. Company will not store or transmit (i) protected health data, as defined in HIPAA, (ii) financial information protected under GLB, (iii) information protected by ITAR, (iv) information subject to PCI Security Standards, or (v) export-controlled matter, in the Service.
4.1 Sustain.Life and its affiliates and/or licensors own all intellectual property and other rights in and related to the Service, as well any improvements, related knowledge, or processes, and derivative works thereto. All rights not expressly granted to Company herein are reserved by Sustain.Life and/or its licensors.
4.2 Sustain.Life will own and have the unrestricted right to use and incorporate into the Service or other Sustain.Life offerings, any suggestions, enhancement requests, recommendations, or other feedback provided by Company, including Users, relating to the Service.
The parties may exchange Confidential Information in connection with this Agreement. “Confidential Information” or “CI” means all information disclosed by a party (“Discloser”) that should reasonably be understood by the other party (“Recipient”), because of markings, the circumstances of disclosure, or the nature of the information itself, to be confidential to Discloser. CI may be disclosed in writing, electronically, or by any other means. Recipient will (i) take reasonable steps to protect Discloser’s CI from unauthorized access, use, or disclosure similar to those steps it would take to protect its own, similar information, (ii) not disclose CI to any third party, and (iii) not use Discloser’s CI other than in connection with this Agreement. Recipient may disclose CI to its employees, representatives, and other agents (“Representatives”) who have a need to know the CI for purposes of this Agreement, and who are required to protect the CI under the terms of a written agreement with restrictions at least as protective as those herein. Sustain.Life’s CI specifically includes the Service and the existence of this Agreement. The parties’ obligations with respect to Confidential Information will survive termination of this Agreement for three (3) years, except for information that is a trade secret, which will remain subject to the obligations hereunder as long as such information is a trade secret under applicable law.
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS”, AND WITHOUT WARRANTIES. SUSTAIN.LIFE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT OR REGARDING RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. SUSTAIN.LIFE EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT, NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. SUSTAIN.LIFE DOES NOT REPRESENT OR WARRANT THAT USE OF THE SERVICE WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED OR THAT THE SERVICE WILL MEET COMPANY’S REQUIREMENTS.
6.2 Indemnity. Company will, at its sole expense, defend and indemnify Sustain.Life, from any third party claims, demands, suits, or proceedings and pay any agreed to settlement or awarded damages, fees, and costs, arising out of (i) Company Data, (ii) use of the Service in violation of applicable laws or regulations or this Agreement, and (iii) an allegation that information and/or materials provided to Sustain.Life by Company under this Agreement infringe the proprietary rights of such third party.
6.3 Limitation of Liability. Subject to any requirements and limitations, if any, of applicable law, and except for the indemnity obligations in Section 6.2 and Company’s payment obligations, neither party will be liable to the other party, regardless of the theory of liability, for (i) indirect, special, consequential, collateral, or incidental damages, including, without limitation, any damage or injury to business earnings, lost profits, data, or goodwill suffered by the other party arising from and/or related to this Agreement, even if advised of the possibility of such damages, and (ii) cumulative direct damages arising from and/or related to this Agreement that exceed the Subscription Fees paid by Company in the twelve (12) months preceding the first incident giving rise to liability.
6.4 Sustain.Life has all rights and authorizations necessary to provide the Services and/or use or provide the Services for Company’s use and enjoyment as contemplated herein; and that Sustain.Life shall provide all Services to Company free and clear of any liens, claims, charges or encumbrances; and that Sustain.Life has proper title in all Services for which a license is granted to Company. No Services furnished by Sustain.Life, will violate, misappropriate or infringe upon any patent, copyright, trademark, trade secret, or other intellectual, contractual, proprietary, employment, or confidentiality right of a third party; there are no claims of any third party against Sustain.Life relating to any intellectual property that is the subject of, to be provided under, or to be used directly or indirectly pursuant to this Agreement.
Company will pay the fees for the Service set forth in an Order Form. All fees for the Service will be paid in advance of the applicable Subscription Term. All Order Forms are non-cancelable and all fees are non-refundable, unless otherwise agreed to by the parties. All invoices will be paid within thirty (30) days of receipt unless otherwise agreed in writing in a Order Form. Fees under this Agreement do not include any taxes, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction ("Taxes"). Company is responsible for paying all Taxes associated with its purchases hereunder.
8.1 This Agreement commences on the effective date of the first Order Form between the parties and continues until all subscriptions granted in accordance hereunder have expired or been terminated.
8.2 Subscriptions to the Service commence on the Subscription Start Date and continue for the Subscription Term, both as specified in the applicable Order Form. Following the initial Subscription Term, and unless otherwise agreed to by the parties, the subscription will automatically renew for one (1) year terms, unless either party gives the other party written notice (email acceptable) of non-renewal at least sixty (60) days prior to the end of the then-current term. Any pricing changes for renewal terms will be reflected on the renewal invoices.
8.3 Either party may terminate this Agreement or an Order Form if the other party has not cured a material breach hereof (or thereof) within thirty (30) days of receiving a written breach notice from the other party. Upon any such termination by Company, Sustain.Life will promptly provide Company a refund of any unused, prepaid Subscription Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any such termination by Sustain.Life, Company will pay any unpaid Subscription Fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of termination.
8.4 Upon any expiration or termination, Company will immediately cease any further use of the Service and Sustain.Life will make all Company Data available to Company for electronic retrieval for a period of thirty (30) days, but thereafter Sustain.Life may, unless legally prohibited or directed by Customer, delete Company Data in Sustain.Life’s systems or in Sustain.Life’s possession or control.
8.5 In addition to any of its other rights or remedies in this Agreement, Sustain.Life may, in its reasonable discretion, deactivate Company’s user name(s) and password and/or suspend provision of the Service, upon prior written notice to Company as the circumstances permit (i) if Company is thirty (30) days or more overdue on a payment, (ii) if Sustain.Life deems such suspension necessary as a result of Company’s breach of Section 2, (iii) if Sustain.Life reasonably determines suspension is necessary to avoid material harm to Sustain.Life (including the security of the systems used to provide the Service) or its other customers, or (iv) as required by law or at the request of governmental entities.
8.6 Any terms that by their nature extend beyond expiration or termination of this Agreement will survive.
Sustain.Life may modify or update this Agreement from time to time. Sustain.Life will post the modified or updated Agreement to this website and update the Last Revised date above. Modifications and updates will become effective upon posting. It is Company’s responsibility to periodically review this Agreement for any changes. Company’s continued use of the Service after any modifications or updates constitutes Company’s acceptance of this Agreement, as updated. If Company does not agree to this Agreement or any updated Agreement, Company may not use or access (and/or shall immediately discontinue further use of and/or access to) the Service.
This Agreement and any related action will be governed and interpreted by the laws of the State of New York, excluding its conflicts of laws rules. Venue for any dispute arising out of this Agreement will be the state or federal courts located in New York, NY, and each party (Company and Sustain.Life) consents to personal jurisdiction to such court(s) and also waives any right it may otherwise have to challenge the appropriateness of such fora. This Agreement and all Order Forms hereunder constitute the entire agreement between the parties with respect to the subject matter herein and supersede all other written or oral agreements and representations related thereto. No terms in a Company purchase order or other order documentation will be incorporated into this Agreement, and all such terms are null and void. This Agreement, and the rights and obligations hereunder, may not be assigned without the prior written consent of the non-assigning party, which will not be unreasonably withheld, provided that either party may assign this Agreement, and the rights and obligations hereunder, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this provision is void and without effect. The parties are independent contractors. Both parties are authorized to use the others name and/or logo for the limited purpose of identifying the relationship entered into under the Agreement, which may appear on either party’s website and/or marketing materials. Nothing in this Agreement creates an agency relationship, employment, joint venture, or similar relationship between the parties. There are no third-party beneficiaries to this Agreement. Neither party will be responsible for delays or failures to perform (except with respect to payment obligations) resulting from acts beyond the reasonable control of such party. All notices pursuant to this Agreement will be in writing and will be deemed duly given when delivered at the address set forth in the applicable Order Form and directed to a party’s Legal department. Billing and system related notices will be provided to Company’s designated billing contact or system administrator, as applicable.
Company permits Sustain.Life to issue press release(s) identifying Company as a customer and/or partner of Sustain.Life, including describing Company’s intended use of Sustain.Life tools and the benefits that Company expects to derive from the service. The content of any press release identifying Company will be subject to Company’s prior approval, and Company’s approval will not be unreasonably delayed, conditioned or withheld.
STANDARD CONTRACTUAL CLAUSES
Module One – Controller to Controller
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.5 (e) and Clause 8.9(b);
(iii) [NOT USED];
(iv)Clause 12(a) and (d);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
8.1 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose:
(i) where it has obtained the data subject’s prior consent;
(ii) where necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
(i) of its identity and contact details;
(ii) of the categories of personal data processed;
(iii) of the right to obtain a copy of these Clauses;
(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimization
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organizational measures to ensure compliance with this obligation, including erasure or anonymization of the data and all back-ups at the end of the retention period.
8.5 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner.
(b) The Parties have agreed on the technical and organizational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) The data importer shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.
(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymization) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) unless the third party is or agrees to be bound by these Clauses. Otherwise, an onward transfer by the data importer may only take place if:
(i) it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;
(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or
(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
(b) The data importer shall make such documentation available to the competent supervisory authority on request.
Use of sub-processors
Data subject rights
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
(b) In particular, upon request by the data subject the data importer shall, free of charge:
(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
(ii) rectify inaccurate or incomplete data concerning the data subject;
(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorized to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.
(c) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(d) The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimization
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third- party beneficiary rights. The Parties agree that this shall be the law of the Republic of Ireland .
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the Republic of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.