INTRODUCTION

This Stackla Data Processing Agreement (“DPA”) reflects the parties’ agreement with respect to the terms governing the processing of Personal Data under the Stackla Master Subscription Agreement (the “MSA”). This DPA is an amendment to the MSA and is effective upon its incorporation into the MSA, which incorporation may be specified in an Order Form or an executed amendment to the MSA. Upon its incorporation into the MSA, the DPA will form a part of the MSA.

In all cases Stackla (“Processor”), or a third party acting on behalf of Processor, acts as the processor of Personal Data and you (“Controller”) remain controller of Personal Data. The term of this DPA shall follow the term of the MSA. Terms not otherwise defined herein shall have the meaning as set forth in the MSA.

THIS DPA INCLUDES:

Standard Contractual Clauses, attached hereto as Appendix 1.

(a) Annex 1 to the Standard Contractual Clauses, which includes specifics on the personal data transferred by the data exporter to the data importer.

(b) Annex 2 to the Standard Contractual Clauses, which includes a description of the technical and organizational security measures implemented by the data importer as referenced.

(c) Annex 3 to the Standard Contractual Clause, which includes the list of subcontractors.

1. Definitions

“Personal Data” means any individual element of information concerning the personal or material circumstances of an identified or identifiable individual.

“Processing” means processing of Personal Data on behalf, encompassing the storage, amendment, transfer, blocking or erasure of personal data by the processor acting on behalf of the Controller.

“GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Instruction” means the written instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalising, blocking, deletion, making available). Instructions shall initially be specified in the MSA and may, from time to time thereafter, be amended, amplified or replaced by Controller in separate written instructions (individual instructions).

2. Scope and Responsibility

Processor shall process Personal Data on behalf of Controller. Processing shall include such actions as may be specified in the MSA and an Order. Within the scope of the MSA, Controller shall be solely responsible for complying with the statutory requirements relating to data protection.

Based on this responsibility, Controller shall be entitled to demand the rectification, deletion, blocking and making available of Personal Data during and after the term of the MSA in accordance with the further specifications of such agreement on return and deletion of personal data.

The regulations of this DPA shall equally apply if testing or maintenance of automatic processes or of Processing equipment is performed on behalf of Controller, and access to Personal Data in such context cannot be excluded.

3. Obligations of Processor

Processor shall collect, process and use Personal Data only within the scope of Controller’s Instructions. If the Processor thinks that an instruction of the Controller infringes the GDPR or other data protection provisions, it shall point this out to the principal without delay.

Within Processor’s area of responsibility, Processor shall structure Processor’s internal corporate organisation to ensure compliance with the specific requirements of the protection of Personal Data. Processor shall take the appropriate technical and organisational measures to adequately protect Controller’s Personal Data against misuse and loss in accordance with the requirements of the GDPR or a corresponding provision of the otherwise applicable national data protection law. Such measures hereunder shall include, but not be limited to,

a. the prevention of unauthorised persons from gaining access to Personal Data Processing systems (physical access control),

b. the prevention of Personal Data Processing systems from being used without authorisation (logical access control),

c. ensuring that persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorisation (data access control),

d. ensuring that Personal Data cannot be read, copied, modified or deleted without authorisation during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),

e. ensuring the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems (entry control),

f. ensuring that Personal Data Processed are Processed solely in accordance with the Instructions (control of instructions),

g. ensuring that Personal Data are protected against accidental destruction or loss (availability control),

h. ensuring that Personal Data collected for different purposes can be processed separately (separation control).

A measure as referred to in lit. b to d above shall be in particular, but shall not be limited to, the use of state of the art encryption technology for client access. An overview of the above listed technical and organizational measures shall be attached to this DPA as an appendix. Upon Controller’s request, Processor shall provide a current Personal Data protection and security program covering Processing hereunder.

Upon Controller’s request, and except where Controller is able to obtain such information directly, Processor shall provide all information necessary for compiling the overview defined in Chapter III Section 2 Article 13 of GDPR or a corresponding provision of the otherwise applicable national data protection law.

Processor shall ensure that any personnel entrusted with Processing Controller’s Personal Data have undertaken to comply with the principle of data secrecy in accordance with GDPR (or a corresponding provision of the otherwise applicable national data protection law) and have been duly instructed on the protective regulations of the GDPR or the otherwise applicable national data protection law. The undertaking to secrecy shall continue after the termination of the above-entitled activities.

The Processor shall appoint a data protection officer, if this is legally required and, upon request of Controller, Processor shall notify to Controller the contact details of the data protection officer.

Processor shall, without undue delay, inform Controller in case of a serious interruption of operations or violations by the Processor or persons employed by it of provisions to protect Personal Data or of terms specified in this DPA. In such an event, Processor shall implement the measures necessary to secure the Personal Data and to mitigate potential adverse effects on the data subjects and shall agree upon the same with Controller without undue delay. Processor shall support Controller in fulfilling Controller’s disclosure obligations under Chapter IV Section 2 Article 33 of GDPR (or a corresponding provision of the otherwise applicable national data protection law).

Controller shall retain title as to any carrier media provided to Processor as well as any copies or reproductions thereof. Processor shall store such media safely and protect them against unauthorised access by third parties. Processor shall, upon Controller’s request, provide to Controller all information on Controller’s Personal Data and information. Processor shall be obliged to securely delete any test and scrap material based on an Instruction issued by Controller on a case-by-case basis. Where Controller so decides, Processor shall hand over such material to Controller or store it on Controller’s behalf.

Processor shall be obliged to audit and verify the fulfilment of the above-entitled obligations and shall maintain an adequate documentation of such verification.

4. Obligations of Controller

Controller and Processor shall be separately responsible for conforming with such statutory data protection regulations as are applicable to them.

Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data detected during a verification of the results of such Processing.

Controller shall be obliged to maintain the publicly available register as defined in Chapter III Section 2 Article 14 (or a corresponding provision of the otherwise applicable national data protection law).

Controller shall be responsible for fulfilling the duties to inform resulting from Chapter IV Section 2 Article 33 of GDPR or a corresponding provision of the otherwise applicable national data protection law.

Controller shall, upon termination or expiration of the MSA and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data carrier media or to delete stored data.

Any additional cost arising in connection with the return or deletion of Personal Data after the termination or expiration of the MSA shall be borne by Controller.

5. Enquiries by Data Subjects to Controller

Where Controller, based upon applicable data protection law, is obliged to provide information to an individual about the collection, processing or use or its Personal Data, Processor shall assist Controller in making this information available, provided that: (i) Controller has instructed Processor in writing to do so, and (ii) Controller reimburses Processor for the costs arising from this assistance.

Where a data subject requests the Processor to correct, delete or block Personal Data, Processor shall refer such data subject to the Controller.

6. Audit Obligations

Controller shall, prior to the commencement of Processing, and at regular intervals thereafter, audit the technical and organisational measures taken by Processor, and shall document the resulting findings.

For such purpose, Controller may, e.g.,

obtain information from the Processor, request Processor to submit to Controller an existing attestation or certificate by an independent professional expert, or upon reasonable and timely advance agreement, during regular business hours and without interrupting Processor’s business operations, conduct an on-site inspection of Processor’s business operations or have the same conducted by a qualified third party which shall not be a competitor of Processor.  Processor shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all information necessary for such audit.

7. Subcontractors

Processor shall be entitled to subcontract Processor’s obligations defined in the MSA to third parties only with Controller’s written consent.

Controller consents to Processor’s subcontracting to Processor’s affiliated companies and third parties, as listed in Annex 3, of Processor’s contractual obligations hereunder.

If the Processor intends to instruct subcontractors other than the companies listed in Annex 3, the Processor must notify the Controller thereof in writing (email to the email address(es) on record in Processor’s account information for Controller is sufficient) and must give the Controller the possibility to object against the instruction of the subcontractor within 30 days after being notified. The objection must be based on reasonable grounds (e.g. if the Controller proves that significant risks for the protection of its Personal Data exist at the subcontractor). If the Processor and Controller are unable to resolve such objection, either party may terminate the MSA by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination.

Where Processor engages subcontractors, Processor shall be obliged to pass on Processor’s contractual obligations hereunder to such subcontractors. Sentence 1 shall apply in particular, but shall not be limited to, the contractual requirements for confidentiality, data protection and data security stipulated between the parties of the MSA.

Where a subcontractor is used, the Controller must be granted the right to monitor and inspect the subcontractor in accordance with this DPA and Chapter IV Section 1 Article 30 of GDPR in conjunction with Chapter IV Section 1 Article 32 Paragraph 1 (or in accordance with the corresponding provision of the otherwise applicable national data protection law). This also includes the right of the Controller to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations within the subcontract relationship, where necessary by inspecting the relevant contract documents.

The provisions of Chapter VII Article 82 of GDPR shall apply as well if a subcontractor in a third country shall be instructed. The Controller hereby authorizes the Processor, to agree in the name and on behalf of the Controller with a subcontractor which processes or uses Personal Data of the Controller outside of the EEA, to enter into EU Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries dated 4 June 2021. This applies accordingly from the date of this authorization with respect to EU Standard Contractual Clauses (Processors) already concluded by the Processor with such subcontractors.

8. Duties to Inform, Mandatory Written Form, Choice of Law, Additional Terms

Where Controller’s Personal Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while being Processed, Processor shall inform Controller without undue delay. Processor shall, without undue delay, notify to all pertinent parties in such action, that any Personal Data affected thereby is in Controller’s sole property and area of responsibility, that Personal Data is at Controller’s sole disposition, and that Controller is the responsible body in the sense of the GDPR (or a corresponding provision of the otherwise applicable national data protection law).

With respect to updates and changes to this DPA, the terms that apply in the ‘Amendment; No Waiver’ section of ‘GENERAL TERMS’ in the MSA shall apply.

In case of any conflict, the regulations of this DPA shall take precedence over the regulations of the MSA. Where individual regulations of this DPA are invalid or unenforceable, the validity and enforceability of the other regulations of this DPA shall not be affected.

The Standard Contractual Clauses in Appendix 1 (“SCCs”) will apply to the processing of Personal Data by Processor under the MSA. Upon the incorporation of this DPA into the MSA, the parties indicated in § 9 below (Parties to this DPA) are agreeing to the SCCs and all appendixes attached thereto. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Appendix 1, the SCCs shall prevail.

The SCCs apply only to Personal Data that is transferred from the European Economic Area (EEA) to outside the EEA, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Directive), and (ii) not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for personal data, including but not limited to binding corporate rules for processors.

9. Parties to this DPA

This DPA is an amendment to and forms part of the MSA.  Upon the incorporation of this DPA into the MSA (i) Controller and the Stackla entity that are each a party to the MSA are also each a party to this DPA, and (ii) Stackla is a party to this DPA, but only with respect to agreement to the SCCs pursuant to § 8 of the DPA, this section § 9 of the DPA, and to the SCCs themselves.

If Stackla is not a party to the MSA, the section of the MSA entitled ‘Limitation of Liability’ shall apply as between Controller and Stackla, and in such respect any references to ‘Stackla’, ‘we’, ‘us’ or ‘our’ shall include both Stackla and the Stackla entity that is a party to the MSA.

The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller.

APPENDIX 1

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

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.

Clause 2

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.

Clause 3

Third-party beneficiaries

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 8.1(b), 8.9(a), (c), (d) and (e); 

iii. Clause 9(a), (c), (d) and (e); 

iv. Clause 12(a), (d) and (f);

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.

Clause 4

Interpretation

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. 

Clause 5

Hierarchy

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.

Clause 6

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.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

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 organisational measures, to satisfy its obligations under these Clauses. 

8.1. Instructions

a. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

b. The data importer shall immediately inform the data exporter if it is unable to follow those instructions. 

8.2. 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, unless on further instructions from the data exporter. 

8.3 Transparency 

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the 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. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.  

8.4. Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5. Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. 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 return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a). 

8.6. Security of processing

a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties 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 subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security. 

b. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

c. 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 breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay. 

d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7. 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 and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union² (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if: 

i. the onward transfer 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 Regulation of (EU) 2016/679 with respect to the processing in question;

iii. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

iv. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9. Documentation and compliance

a. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses. 

b. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

c. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.   

d. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice. 

e. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

a. SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least 30 days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.³ The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

c. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

d. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract. 

e. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

a. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

b. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required. 

c. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

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 authorised 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, organisation 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.

Clause 12

Liability

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. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses. 

c. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) 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 and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

d. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

e. 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.

f. The Parties agree that if one Party is held liable under paragraph (e), 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.

g. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

a. 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

Clause 14

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 authorising 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 authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards⁴; 

iii. any relevant contractual, technical or organisational 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 organisational 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.  

Clause 15

Obligations of the data importer in case of access by public authorities

15.1 Notification

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 minimisation

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

Clause 16

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. 

Clause 17

Governing law

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 Finland. 

Clause 18

Choice of forum and jurisdiction

a. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

f. The Parties agree that those shall be the courts of Finland.

g. 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. 

h. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX 1

ANNEX I

A. LIST OF PARTIES

Data exporter: 

1. Name: The entity identified as ”Customer” in the MSA.

Address: The address for Customer specified in the MSA.

Contact person’s name, position and contact details: The contact details for Customer specified in the MSA.

Activities relevant to the data transferred under these Clauses: The Activities specified under Section 2 of the Data Processing Addendum.

Signature and date: By signing the Agreement with this Annex 1 attached, the data exporter will be deemed to have signed this Annex I.

Role: Controller

Data importer:

1. Name: ”Stackla” as identified in the MSA.

Address: The address for Stackla specified in the MSA.

Contact person’s name, position and contact details: The contact details for Stackla specified in the MSA.

Activities relevant to the data transferred under these Clauses: The Activities specified under Section 2 of the Data Processing Addendum. 

Signature and date: By signing the Agreement with this Annex 1 attached, the data importer will be deemed to have signed this Annex I.

Role: Processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The data subjects could include Customer’s customers, employees, suppliers and End Users.

Categories of personal data transferred

The personal data uploaded to or accessed in the Services under Customer’s accounts, primarily User Generated Content, (images, videos, etc.) from Social Networks.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

The data exporter might include sensitive personal data in the personal data described in Section 2 of the DPA. 

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Personal data is transferred in accordance with Customer’s instructions as described in the DPA.

Nature of the processing

The nature of the processing is described in Section 2 of the DPA.

Purpose(s) of the data transfer and further processing

To provide the services as defined in the MSA.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period 

The data exporter determines the duration of processing in accordance with the terms of the DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

The subject matter, nature and duration of the processing are described in the DPA.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority in accordance with Clause 13 

The data exporter’s competent supervisory authority will be determined in accordance with the GDPR. 

ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

a. Access Control

i. Preventing Unauthorized Product Access

Outsourced processing: Stackla hosts its Service with outsourced, Australian based data center providers. Additionally, Stackla maintains contractual relationships with vendors in order to provide the Service. Stackla relies on contractual agreements, privacy policies, and vendor compliance programs in order to assure the protection of data processed or stored by these vendors.

Physical and environmental security: Stackla hosts its product infrastructure with multi-tenant, outsourced data center providers. The physical and environmental security controls are audited for SOC 1, SOC 2, SOC 3 and ISO 27001, ISO 27017 and ISO 27018 compliance, among other international and regional certifications.

Amazon Web Services hosting services are continuously evaluated for compliance in relation to physical access controls, limited employee and contractor access and physical security protections. More information on AWS security processes is available at http://d0.awsstatic.com/whitepapers/Security/AWS_Security_Whitepaper.pdf.

Authentication: Stackla has implemented a uniform password policy for its products, in addition offers the ability for customers to apply additional security controls and authenticate via Single Sign On. Customers who interact with the products via the user interface must authenticate before accessing non-public data r services.

Authorization: Customer data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of Stackla’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.

Application Programming Interface (API) access: Public product APIs may be accessed using an API key generated via Oauth.

ii. Preventing Unauthorized Product Use

Stackla implements industry standard access controls and detection capabilities for the internal networks that support its products.

Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. 

Intrusion detection and prevention: Stackla implemented a Web Application Firewall (WAF) solution to protect all hosted sites as well as Stackla Service access. The WAF is designed to identify and prevent attacks against publicly available network services.

Code analysis: Security reviews of code stored in Stackla’s source code repositories is performed, checking for coding best practices and identifiable software flaws.

Penetration testing: Stackla maintains relationships with industry recognized penetration testing service providers for annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.

iii) Limitations of Privilege & Authorization Requirements

Product access: A limited subset of Stackla employees have access to products and to customer data via controlled interfaces. This access is limited to an as needs basis to allow the users to provide effective customer support, to troubleshoot potential problems, and to detect and respond to security incidents.

Employees are granted access by role, with privilege grants reviewed regularly. Employee roles are reviewed at least once every six months.

Background checks: All Stackla employees undergo an extensive 3rd party background check prior to being extended an employment offer. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.

b. Transmission Control

In-transit: Stackla makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and is enforced on all instances of the Stackla Product. HTTPS implementation uses industry standard algorithms and certificates.

At-rest: Stackla stores user passwords in a bcrypt hash as per industry standard practices for security and leverages AES 256 GCM encryption for Name, Email and Tokens.

c. Input Control

Detection: Stackla designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Stackla personnel, including security, operations, and support personnel, are responsive to known incidents.

Response and tracking: Stackla maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, Stackla will take appropriate steps to minimise product and Customer damage or unauthorized disclosure.

Communication: If Stackla becomes aware of unlawful access to Customer data stored within its products, Stackla will: 1) notify the affected Customers of the incident; 2) provide a description of the steps Stackla is taking to resolve the incident; and 3) provide status updates to the Customer contact, as Stackla deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the listed contacts provided to Stackla and will be communicated via their relevant Account Manager.

d. Job Control

The Stackla Marketing Product provides a solution for Customers to conduct their marketing and sales activities. Customers control the data types collected by and stored within their Platform instances. Stackla never sells personal data to any third party.

Terminating Customers: Stackla will purge data relating to a Customer’s Stack within a timely period at the termination of their agreement as outlined within the relevant Terms and Conditions relating to the Customer’s license.

The purging of data relates to the content aggregated by the customer Stack. Marketing information collected around a customer will not be purged, but instead will be aged out of the system via a Data Lifecycle process.

Specific Customer Data can be purged based upon request from the Customer as outlined within the relevant Terms and Conditions relating to the Customer’s license.

e. Availability Control

Infrastructure availability: The data center providers use commercially reasonable efforts to ensure a minimum of 99% uptime.

Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and

replicated across multiple data centers and availability zones. Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.

Stackla’s products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists Stackla operations in maintaining and updating the product applications and backend while limiting downtime.

f. Separation in Processing

Stackla’s collection of personal data from its Customers is to provide and improve our Sales and Marketing Products. Stackla does not use that data for other purposes that would require separate processing.

ANNEX III – LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors: 

1. Name: Amazon Web Services Australia Pty Ltd 

Address: L37 2-26 Park St Sydney, NEW SOUTH WALES, 2000 Australia 

Description of processing: Hosting of application and core data and databases.The Data Importer stores all production data through this secure service. 

2. Name: MongoDB, Inc., 

Address:1633 Broadway, 38th Floor New York, NY 10019, United States

Description of processing: For secondary (hot) and point-in-time backups used for disaster recovery.

3. Name: Iron.io, Inc.

Address: 5940 S Rainbow Blvd Ste 400 #29212, Las Vegas, NV 89118, United States

Description of processing: Webhook transport.