EU/GDPR DATA PROTECTION ADDENDUM

THIS DATA PROTECTION ADDENDUM is entered into between Elate, Inc. (“Elate”) and You (as defined in the Terms) effective as of the start of the provision of the Services. Elate and You have entered into the terms of service (the “Terms”) pursuant to which Elate provides Services to You which entail the processing of Customer Personal Data. This Addendum ensures the security and proper protection of Customer Personal Data. This Addendum is incorporated into the Terms under Section 17(b). By clicking through and accepting the Terms when signing up for the Services, the parties hereby enter this Addendum where the provision of the Services under the Terms involves the processing of Customer Personal Data subject to the European Data Protection Laws by Elate on behalf of You. Such click-through acceptance shall also be deemed to constitute signature and acceptance of the EU Model Clauses set out in Schedule 2 and incorporated herein.

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1 Definitions and Interpretation

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

1.2 “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.

1.3 “Applicable Law” means as applicable and binding on You, Elate 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.

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

1.5 “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 You, Elate 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.

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

1.7 “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.

1.8 “Services” means the services and platform provided by Elate to Customer pursuant to the Terms.

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

1.10 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.

1.11 Capitalized terms not defined in this Addendum shall have the meaning given to them in the Terms.

1.12 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.

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

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2 Roles of the Parties and Description of the Processing

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

2.2 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 Terms.

2.3 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 Terms.

2.4 The processing activities to be performed by Elate under the Terms are:

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3 Your Obligations

3.1 You warrant, represent and covenant that you comply with Your obligations under the European Data Protection Laws in respect of the collection, use, and transfer of Customer Personal Data and maintain adequate records to document and evidence Your compliance with Your obligations under the European Data Protection Laws.

3.2 Without prejudice to paragraph 3.1, You warrant, represent and covenant that You shall:

3.2.1 provide an appropriate notice, compliant with the European Data Protection Laws, to data subjects which identifies You as the controller of Customer Personal Data and sets out how it processes Customer Personal Data through the Services;
3.2.2 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 Terms and this Addendum;
3.2.3 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; and
3.2.4 not upload to the Services or otherwise provide to Elate any special categories of personal data or other personal data deemed sensitive under the European Data Protection Laws.

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4 Data Processing

4.1 Elate shall only process Customer Personal Data:

4.1.1 as needed to provide the Services; and
4.1.2 in accordance with this Addendum and the Terms (and not otherwise unless alternative processing instructions are agreed between the parties in writing);
unless required to do otherwise by Applicable Law.

4.2 If Elate believes that any instruction received by it from You infringes or may infringe the European Data Protection Laws, Elate shall promptly notify You 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 Elate acting reasonably.

4.3 In respect to Customer Personal Data, Elate shall:

4.3.1 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 inSchedule 1;
4.3.2 ensure that only those Elate personnel who may be required by Elate to assist in meeting its obligations under the Terms have access to Customer Personal Data, that such Elate 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 Elate personnel;
4.3.3 at Your cost and taking into account the nature of the processing, provide reasonable cooperation to You to allow You 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
4.3.4 at Your cost and option, following the end of the provision of Services pursuant to the Terms, either return or delete all Customer Personal Data in its possession or control, except to the extent that any Applicable Law requires Elate 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 Elate’s back-up systems.

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

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

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5 Subprocessors

5.1 You generally authorize the appointment of Subprocessors. The specific Subprocessors for the Services (which are hereby authorized by You) as at the date of this Addendum are: Amazon Web Services; FullStory; HubSpot; Intercom; and Heap.

5.2 Not withstanding any provisions of the Terms, where Elate appoints a new Subprocessor:

5.2.1 Elate provide You with reasonable notice of the new Subprocessor (which may be by means of a dedicated subprocessor page on Elate’s website, goelate.com); and
5.2.2 Elate shall impose legally binding contract terms on the Subprocessor which are substantially the same as those contained in this Addendum.

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

5.4 If You object (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 Your objection to the new Subprocessor in relation to the provision of the Services to You. Where such accommodation is determined to be not practicable (in the sole discretion of and as notified in writing by Elate), You may terminate the Terms on 30 days’ prior written notice.

5.5 Elate acknowledges and agrees that it shall remain liable to You for a breach of the terms of this Addendum by a Subprocessor.

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6 Security Breaches

6.1 Elate shall notify You without undue delay on becoming aware of any Personal Data Breach.

6.2 Where Elate becomes aware of any Personal Data Breach, it shall, without undue delay, also provide You with:

6.2.1 a description of the nature of the Personal Data Breach, including the categories and approximate number of data subjects and personal data records concerned;
6.2.2 the likely consequences;
6.2.3 a description of the measures taken or proposed to betaken to address the Personal Data Breach, including measures to mitigate its possible adverse effects.

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7 Cooperation

7.1 At Your cost, Elate agrees to provide such assistance reasonably required by You to enable You 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 Elate on Your behalf; or (b) any regulator or supervisory authority. If Elate receives any Communication, Elate shall inform You within a reasonable time and shall not respond to the Communication unless required by any Applicable Law or expressly authorized by You in writing.

7.2 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.

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8 Data Transfers for Customer Personal Data

8.1 You consent to Elate (and/or its Subprocessors) processing Customer Personal Data subject to the European Data Protection Laws in a Restricted Territory provided that:

8.1.1 such transfer or export complies with Applicable Law (including the European Data Protection Laws); and
8.1.2 Elate complies with paragraph 8.2 and paragraph 8.3 throughout the duration of the Terms.

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

8.2.1 the terms of the transfer between You and Elate shall be governed by the standard contractual clauses for the transfer of personal data to processors, approved by Commission Decision C(2010)593 (the “EU Model Clauses”) attached as Schedule 2 and which are hereby incorporated into this Addendum. Where any updated, revised or replacement standard contractual clauses are approved by the Commission or a supervisory authority from time to time, the parties shall promptly enter such revised clauses and those clauses shall be deemed to be the EU Model Clauses for the purposes of this Addendum; and
8.2.2 in respect of transfers from Elate to its Subprocessors, the terms of the transfer shall be governed by, and Elate shall comply with, the provisions of clause 11 (Subprocessing) of the EU Model Clauses. You acknowledge and agree that this may be achieved by Elate entering the EU Model Clauses (in substantially the form entered into between You and Elate) in the name of, and on behalf of, You an You grant Elate the authority to enter the EU Model Clauses with its Subprocessors for such purpose (and no other purpose).

8.3 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 ProtectionLaws.

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9 Liability

9.1 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 Terms. In no event shall either party’s liability for a breach of this Addendum exceed the liability cap set out in the Terms.

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

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10 Miscellaneous

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

10.2 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 Terms 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.

10.3 Elate may, by at least 30 calendar days’ written notice to You, 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.

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

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Schedule 1

Elate 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 the Terms, 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, unauthorised disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed, Elate shall implement appropriate technical and organisational 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, Elate shall implement and maintain the following technical and organisational security measures to protect Customer Personal Data:

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1. Measures to prevent unauthorised persons from gaining access to data processing systems with/on which Customer Personal Data is processed or used (physical access control):

Elate’s application and software platform is hosted via Amazon Web Services (AWS) which implements physical and environmental security measures in relation to its data centres and hosting facilities as described on its website.
Elate is a remote-operating company with no physical office.

2. Measures to prevent data processing systems from being used without authorisation (logical access control):

Use of network devices such as intrusion detection systems, routers and firewalls.
Secure log-in with unique user-ID/password.
Policy mandates for locking unattended workstations including automatic locking.
Logging and analysis of system usage.
Role-based access for critical systems containing Customer Personal Data.
Process for routine system updates for known vulnerabilities.
Encryption of laptop hard drives.
Monitoring for security vulnerabilities on critical systems.
Deployment and updating of antivirus software.
Individual allocation of user rights, authentication by password and username, use of smartcards for log in, minimum requirements for passwords, password management, password request after inactivity, blocking of external ports (such as USB ports), encryption of data, virus protection and use of firewalls, intrusion detection systems.

3. Measures to ensure that persons entitled to use a data processing system can gain access only to the data to which they have a right of access, and that, in the course of processing or use and after storage, personal data cannot be read, copied, modified or deleted without authorisation (access control to data):

Use of network devices such as intrusion detection systems, routers and firewalls.
Secure log-in with unique user-ID/password.
Logging and analysis of system usage.
Role-based access for critical systems containing Customer Personal Data.
Encryption of laptop hard drives.
Deployment and updating of antivirus software.
Definition and management of role-based authorization concept, access to Customer Personal Data only on a need-to-know basis, general access rights only for a limited number of admins, access logging and controls, encryption of data, intrusion detection systems, secured storage of data carriers, secure data lines, distribution boxes and sockets.

4. Measures to ensure that Customer Personal Data cannot be read, copied, modified or deleted without authorisation during electronic transmission, transport or storage and that it is possible to verify and establish to which entities the transfer of Customer Personal Data by means of data transmission facilities is carried out (data transfer control):

Encryption of sensitive communications, use of VPN for remote access, firewalls and encryption of laptop hard drives.
Logging and analysis of system usage.

5. Measures to ensure that it is possible retrospectively to examine and establish whether and by whom Customer Personal Data have been accessed, modified or removed (entry control):

Logging and analysis of system usage.
Role-based access for critical systems containing Customer Personal Data.
Logging and reporting systems, individual allocation of user rights to access, modify or erase based on role-based authorization concept.

6. Measures to ensure that Customer Personal Data are processed in accordance with the directions of the customer and applicable laws (job control):

Security and privacy awareness training for all personnel.
Implementation of periodic internal security audits.
Implementation of processes to ensure that Customer Personal Data is only processed as instructed by a customer and in accordance with Elate’s legal obligations.

7. Measures to ensure that Customer Personal Data are protected against accidental destruction or loss (availability control):

Backup procedures and recovery systems, redundant servers in separate location, mirroring of hard disks, remote storage, anti-virus/firewall systems, malware protection, disaster recovery and emergency plan.

8. Measures to ensure that data collected for different purposes or different principals can be processed separately (separation control):

Internal client concept and technical logical client data segregation, role-based authorization concept, separation of test data and live data.

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Schedule 2

EU Model Clauses

For the purposes of Article 26(2) of Directive95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: “You” as identified in the Addendum and/or the Terms, for Yourself and/or on behalf of Your relevant Affiliate(s) in the EEA, the UK or Switzerland (as applicable).

(the data exporter)

And

Name of the data importing organisation: Elate, Inc.

(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:

(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;

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(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

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

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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.

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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.

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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.

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Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

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

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

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance withClause 4(a) to (i).

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Clause 5

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 organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(e) 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,

(f) any accidental or unauthorised access, and

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

(h) 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;

(i) 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;

(j) 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;

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

(l) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

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

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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.

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

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

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

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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:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

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Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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).

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Clause 9

Governing Law

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

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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.

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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.

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.

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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.

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.

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Appendix 1 to the Standard Contractual Clauses

Data exporter

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

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Data importer

The data importer is Elate, Inc., the provider of the Services.

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Data subjects

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

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Categories of data

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

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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.

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Processing operations

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

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Appendix 2 to the Standard Contractual Clauses

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

Please see Schedule 1 of the Addendum.