EU Users - Schedule 1
Data Processing Agreement
The following definitions and rules of interpretation apply in this Schedule 1.
1.1 Definitions:
1. Agreement: the terms of this Schedule 1
2. Authorized Persons: the persons or categories of persons that the Customer authorizes to give the provider personal data processing instructions as identified from time to time.
3. Business Purposes: the services described in Annex A.
4. Customer: you or your Organisation (if applicable).
Data Subject: an individual who is the subject of Personal Data.
Data Protection Legislation: all legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
5. Personal Data: 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;
6. Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
7. Standard Contractual Clauses (SCC): the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.
8. Terms of Use: the contract between Noted Limited and you to which this Agreement is Schedule 1.
9. The data exporter means the controller who transfers the personal data; The data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its 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.
10. The sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 its instructions, the terms of the Clauses and the terms of the written subcontract.
11. 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 of the EU in which the data exporter is established.
12. Technical and organizational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
1.2 This Agreement is subject to the terms of the Terms of Use and is incorporated into the Terms of Use. Interpretations and defined terms set forth in the Terms of Use apply to the interpretation of this Agreement.
1.3 The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.
1.4 In the case of conflict or ambiguity between:
(a) any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
(b) the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail;
(c) any of the provisions of this Agreement and the provisions of the Terms of Use, the provisions of this Agreement will prevail; and
(d) any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.
1.5 The clauses of this Schedule shall be governed by the law of the Member State in which the data exporter is established.
1.6 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;
Noted Terms of Use
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
1.7 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.
1.8 The parties undertake not to vary or modify the Clauses in this Schedule where mandated by the SCC. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
2.1 The Customer and the Provider acknowledge that for the purpose of the DataProtection Legislation, the Customer is the controller and the Provider is the processor.
2.2 The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
2.3 The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A which forms an integral part of the Agreement.
3.1 The data subject can enforce against the data exporter this clause 3, clause 4.1(b) to clause 4.1(i), clause 5.1(a) to clause 5.1(e) and clause 5.1(g) to clause 5.1(j), clauses18.1 to 18.2, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4and clauses 14.1 to 14.2 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4 and clauses 14.1 to 14.2, 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.
3.3 The data subject can enforce against the sub-processor this clause 3, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2, clauses11.1 to 11.4 and clauses 14.1 to 14.2, 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 sub-processor shall be limited to its own processing operations under the Clauses.
3.4 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.
4.1 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 Annex B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5.1(b) and clause 7.3 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 Annex B and a summary description of the security measures, as well as a copy of any contract for sub-processing 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 sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
(j) that it will ensure compliance with clause 4.1(a) to clause 4.1(i).
5.1 The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/ or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Annex B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so
(e) 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;
(f) 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;
(g) to make available to the data subject upon request a copy of the Clauses,or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex B 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
5.2 The Provider must promptly notify the Customer if, in its opinion, the Customer'sinstruction would not comply with the Data Protection Legislation.
5.3 The Provider will reasonably assist the Customer with meeting the Customer'scompliance obligations under the Data Protection Legislation, taking into account the nature of the Provider's processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
5.4 The Provider must promptly notify the Customer of any changes to Data Protection Legislation that may adversely affect the Provider's performance of the Terms of Use.
6.1 The Provider will ensure that all employees:
(a) are informed of the confidential nature of the Personal Data and are boundby confidentiality obligations and use restrictions in respect of the PersonalData;
(b) have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
(c) are aware both of the Provider's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
7.1 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.
7.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
7.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to clause 1.7. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5.1(b).
8.1 The Provider must at all times implement appropriate technical and organizational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data including, but not limited to, the security measures set out in Annex B. The Provider must document those measures in writing and periodically review them to ensure they remain current and complete.
8.2 The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing, and evaluating the effectiveness of security measures.
9.1 The Provider will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will, where practicable, restore such Personal Data at its own expense.
9.2 The Provider will without undue delay notify the Customer if it becomes aware of:
(a) any accidental, unauthorised or unlawful processing of the Personal Data;or
(b) any Personal Data Breach.
9.3 Where the Provider becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Customer with the following information:
(a) description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
(b) the likely consequences; and
(c) description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.
9.4 Immediately following any unauthorised or unlawful Personal Data processing orPersonal Data Breach, the parties will coordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer'shandling of the matter, including:
(a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected;
(c) facilitating interviews with the Provider's employees, former employees and others involved in the matter;
(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
9.5 The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer's prior written consent, except when required to do so by law.
9.6 The Provider agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
9.7 The Provider will cover all reasonable expenses associated with the performance of the obligations under clause 9.2 and clause 94 unless the matter arose from the Customer's specific instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will indemnify the Provider against expenses incurred.
9.8 The Provider will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to a Personal Data Breach to the extent that the Provider is found to have caused such a Personal Data Breach.
10.1 The Provider (or any subcontractor) must not transfer or otherwise process Personal Data outside the European Economic Area (EEA) without obtaining the Customer'sprior written consent (as provided for in clause 10.2 below).
10.2 The Customer hereby consents to the transfer and processing of Personal Data by theProvider outside the EEA as set out in Annex A.
10.3 Where such consent is granted, the Provider may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:
(a) the Provider is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Provider must identify in Annex A the territory that is subject to such an adequacy finding; or
(b) the Provider participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Provider (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the General DataProtection Regulation ((EU) 2016/679). The Provider must identify in Annex C the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Provider must immediately inform the Customer of any change to that status; or
(c) the transfer otherwise complies with the Data Protection Legislation for the reasons set out in Annex A.
10.4 If any Personal Data transfer between the Customer and the Provider requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting Personal Data to the Provider outside the EEA), the parties will complete all relevant details in, and execute, SCC, and take all other actions required to legitimize the transfer.
11.1 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor's obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor 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 clause 18.2against 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 sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
11.5 Those subcontractors approved as at the commencement of this Agreement are as set out in Annex C. The Provider must list all approved subcontractors in Annex C.
11.6 Where the subcontractor fails to fulfil its obligations under such written agreement, the Provider remains fully liable to the Customer for the subcontractor's performance of its agreement obligations.
11.7 The Parties consider the Provider to control any Personal Data controlled by or in the possession of its subcontractors.
11.8 On the Customer's written request, the Provider will audit a subcontractor's compliance with its obligations regarding the Customer's Personal Data and provide the Customer with the audit results. The Customer shall pay the reasonable costs of the Provider in carrying out such an audit.
12.1 The Provider must, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:
(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
(b) information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
12.2 The Provider must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation.
12.3 The Provider must notify the Customer within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
12.4 The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request, for which the Customer shall pay the reasonable costs for such assistance.
12.5 The Provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer's request or instruction, as provided for in this Agreement or as required by law.
13.1 This Agreement will remain in full force and effect so long as:
(a) the Terms of Use remains in effect; or
(b) the Provider retains any Personal Data related to the Terms of Use in its possession or control (Term).
13.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Terms of Use in order to protect Personal Data will remain in full force and effect.
13.3 The Provider's failure to comply with the terms of this Agreement is a material breach of the Terms of Use. In such event, the Customer may terminate any part of the Terms of Use authorising the processing of Personal Data effective immediately on written notice to the Provider.
13.4 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations, the parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within a reasonable period, they may terminate the Terms of Use on written notice to the other party.
14.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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.
14.2 The data importer and the sub-processor 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 clause 14.1. The Customer shall meet the reasonable costs of the audit.
14.3 At the Customer's request, the Provider will give the Customer a copy of or access to all or part of the Customer's Personal Data in its possession or control in a common electronic format, such as JSON. This may be by provision of a secure internet link from where the Customer may download the Personal Data. The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.
14.4 On termination of the Terms of Use, or termination of the authority to process the Customer’s Personal Data for any reason or expiry of the term of the Terms of Use, the Provider will return all or any Personal Data related to the Terms of Use and this Agreement in its possession or control in a common electronic format, such as JSON(this may be by provision of a secure internet link from where the Customer may download the Personal Data). The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.
14.5 The Provider will certify in writing that it has destroyed the Personal Data if requested todo so by the Customer.
15.1 The Provider will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Customer, including but not limited to,the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 5.1 (Records).
15.2 The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider's compliance with its obligations under this Agreement and the Provider will provide the Customer with copies of the Records upon request.
15.3 The Customer and the Provider must review the information listed in the Annexes to this Agreement periodically to confirm its current accuracy and update it when required to reflect current practices.
16.1 The Customer will pay the Provider’s reasonable costs of any audit carried out under these clauses.
16.2 At the Customer's written request, the Provider will:
(a) conduct an information security audit before it first begins processing any Personal Data and repeat that audit periodically;
(b) produce a written report that includes detailed plans to remedy any security deficiencies identified by the audit;
(c) provide the Customer with a copy of the written audit report; and
(d) remedy any deficiencies identified by the audit within a reasonable period.
17.1 The Customer shall indemnity the Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Provider as a result of the Customer's specific instructions, negligence, wilful default or breach of this Agreement.
18.1 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
18.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 18.1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
18.3 The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
18.4 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in clauses 18.1 and 18.2, arising out of a breach by the sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
ANNEX A Personal Data Processing Purposes and Details
Data exporter
The data exporter is the Customer.
Data importer
The data importer is Noted Limited
Data subjects
The personal data transferred may include:
- the Customer,
- Customer’s staff and contractors,
- Customer’s clients and their families,
- Customer’s suppliers.
Categories of data
The personal data transferred concern the followingcategories of data:
-
- Demographic information, including name, contactdetails and date of birth;
- Financial information, including insuranceinformation
- Occupational information
- The information as described in special categories of data below
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
• Racial or ethnic origin • Religious beliefs
• Health data
• Genetic data
• Sexual history
• Sexual orientation
Processing operations
The personal data transferred will be subject to thefollowing basic processing activities:
• Storage
• Modifying
• Exporting
• Correlation
• Viewing
• Printing
• Deletion as initiated by the Customer in accordance with the functionalities offered by the Noted System
ANNEX B Legal Basis for processing and approved subcontractors
This Annex B forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/ legislation attached):
1. Information Security Program
Noted will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to:
- help Customers secure Customer Data against accidental or unlawful loss, access or disclosure;
- identify reasonably foreseeable and internal risks to security and unauthorised access to Noted systems; and
- minimise security risks, including through risk assessment and regular testing.
Noted will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security
Noted systems will be electronically accessible to employees, subcontractors and any other person as necessary to provide the Services. Noted will maintain access controls and policies to manage what access is allowed to Noted systems by each user, including the use of firewalls or functionally equivalent technology and authentication controls. Noted will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
Noted’s physical facilities are maintained in a secured (locked) state. Locks and alarm systems are in place. Noted provides access to its physical facilities only to those employees and contractors who have a legitimate business need for such access privileges. All electronic access and storage devices are secured at the end of each work day. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked.
2. Continued Evaluation
Noted will conduct periodic reviews of the security of its systems and the adequacy of its information security program as measured against industry security standards and its policies and procedures. Noted will continually evaluate the security of its electronic systems and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
ANNEX C Approved Subcontractors
The Provider's legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions:
- Located in a country with a current determination of adequacy: New Zealand
- Standard Contractual Clauses between Provider as "data exporter" and Provider affiliate orsubcontractor as "data importer".
Approved Subcontractors:
• Amazon Web Services, Inc
The following definitions and rules of interpretation apply in this Schedule 1.
1.1 Definitions:
1. Agreement: the terms of this Schedule 1
2. Authorized Persons: the persons or categories of persons that the Customer authorizes to give the provider personal data processing instructions as identified from time to time.
3. Business Purposes: the services described in Annex A.
4. Customer: you or your Organisation (if applicable).
Data Subject: an individual who is the subject of Personal Data.
Data Protection Legislation: all legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
5. Personal Data: 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;
6. Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
7. Standard Contractual Clauses (SCC): the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.
8. Terms of Use: the contract between Noted Limited and you to which this Agreement is Schedule 1.
9. The data exporter means the controller who transfers the personal data; The data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its 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.
10. The sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 its instructions, the terms of the Clauses and the terms of the written subcontract.
11. 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 of the EU in which the data exporter is established.
12. Technical and organizational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
1.2 This Agreement is subject to the terms of the Terms of Use and is incorporated into the Terms of Use. Interpretations and defined terms set forth in the Terms of Use apply to the interpretation of this Agreement.
1.3 The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.
1.4 In the case of conflict or ambiguity between:
(a) any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
(b) the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail;
(c) any of the provisions of this Agreement and the provisions of the Terms of Use, the provisions of this Agreement will prevail; and
(d) any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.
1.5 The clauses of this Schedule shall be governed by the law of the Member State in which the data exporter is established.
1.6 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;
Noted Terms of Use
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
1.7 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.
1.8 The parties undertake not to vary or modify the Clauses in this Schedule where mandated by the SCC. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
2.1 The Customer and the Provider acknowledge that for the purpose of the DataProtection Legislation, the Customer is the controller and the Provider is the processor.
2.2 The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.
2.3 The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A which forms an integral part of the Agreement.
3.1 The data subject can enforce against the data exporter this clause 3, clause 4.1(b) to clause 4.1(i), clause 5.1(a) to clause 5.1(e) and clause 5.1(g) to clause 5.1(j), clauses18.1 to 18.2, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4and clauses 14.1 to 14.2 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2 and clause 1.5, clauses 11.1 to 11.4 and clauses 14.1 to 14.2, 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.
3.3 The data subject can enforce against the sub-processor this clause 3, clause 5.1(a) to clause 5.1(e) and clause 5.1(g), clause 18, clause 1.6 to clause 1.7, clause 7.2, clauses11.1 to 11.4 and clauses 14.1 to 14.2, 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 sub-processor shall be limited to its own processing operations under the Clauses.
3.4 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.
4.1 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 Annex B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5.1(b) and clause 7.3 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 Annex B and a summary description of the security measures, as well as a copy of any contract for sub-processing 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 sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
(j) that it will ensure compliance with clause 4.1(a) to clause 4.1(i).
5.1 The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/ or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Annex B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so
(e) 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;
(f) 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;
(g) to make available to the data subject upon request a copy of the Clauses,or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex B 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
5.2 The Provider must promptly notify the Customer if, in its opinion, the Customer'sinstruction would not comply with the Data Protection Legislation.
5.3 The Provider will reasonably assist the Customer with meeting the Customer'scompliance obligations under the Data Protection Legislation, taking into account the nature of the Provider's processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
5.4 The Provider must promptly notify the Customer of any changes to Data Protection Legislation that may adversely affect the Provider's performance of the Terms of Use.
6.1 The Provider will ensure that all employees:
(a) are informed of the confidential nature of the Personal Data and are boundby confidentiality obligations and use restrictions in respect of the PersonalData;
(b) have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
(c) are aware both of the Provider's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
7.1 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.
7.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
7.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to clause 1.7. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5.1(b).
8.1 The Provider must at all times implement appropriate technical and organizational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data including, but not limited to, the security measures set out in Annex B. The Provider must document those measures in writing and periodically review them to ensure they remain current and complete.
8.2 The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing, and evaluating the effectiveness of security measures.
9.1 The Provider will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will, where practicable, restore such Personal Data at its own expense.
9.2 The Provider will without undue delay notify the Customer if it becomes aware of:
(a) any accidental, unauthorised or unlawful processing of the Personal Data;or
(b) any Personal Data Breach.
9.3 Where the Provider becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Customer with the following information:
(a) description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
(b) the likely consequences; and
(c) description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.
9.4 Immediately following any unauthorised or unlawful Personal Data processing orPersonal Data Breach, the parties will coordinate with each other to investigate the matter. The Provider will reasonably co-operate with the Customer in the Customer'shandling of the matter, including:
(a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected;
(c) facilitating interviews with the Provider's employees, former employees and others involved in the matter;
(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
9.5 The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer's prior written consent, except when required to do so by law.
9.6 The Provider agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
9.7 The Provider will cover all reasonable expenses associated with the performance of the obligations under clause 9.2 and clause 94 unless the matter arose from the Customer's specific instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will indemnify the Provider against expenses incurred.
9.8 The Provider will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to a Personal Data Breach to the extent that the Provider is found to have caused such a Personal Data Breach.
10.1 The Provider (or any subcontractor) must not transfer or otherwise process Personal Data outside the European Economic Area (EEA) without obtaining the Customer'sprior written consent (as provided for in clause 10.2 below).
10.2 The Customer hereby consents to the transfer and processing of Personal Data by theProvider outside the EEA as set out in Annex A.
10.3 Where such consent is granted, the Provider may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:
(a) the Provider is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Provider must identify in Annex A the territory that is subject to such an adequacy finding; or
(b) the Provider participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Provider (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the General DataProtection Regulation ((EU) 2016/679). The Provider must identify in Annex C the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Provider must immediately inform the Customer of any change to that status; or
(c) the transfer otherwise complies with the Data Protection Legislation for the reasons set out in Annex A.
10.4 If any Personal Data transfer between the Customer and the Provider requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting Personal Data to the Provider outside the EEA), the parties will complete all relevant details in, and execute, SCC, and take all other actions required to legitimize the transfer.
11.1 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor's obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor 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 clause 18.2against 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 sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
11.5 Those subcontractors approved as at the commencement of this Agreement are as set out in Annex C. The Provider must list all approved subcontractors in Annex C.
11.6 Where the subcontractor fails to fulfil its obligations under such written agreement, the Provider remains fully liable to the Customer for the subcontractor's performance of its agreement obligations.
11.7 The Parties consider the Provider to control any Personal Data controlled by or in the possession of its subcontractors.
11.8 On the Customer's written request, the Provider will audit a subcontractor's compliance with its obligations regarding the Customer's Personal Data and provide the Customer with the audit results. The Customer shall pay the reasonable costs of the Provider in carrying out such an audit.
12.1 The Provider must, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:
(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
(b) information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
12.2 The Provider must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation.
12.3 The Provider must notify the Customer within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
12.4 The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request, for which the Customer shall pay the reasonable costs for such assistance.
12.5 The Provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer's request or instruction, as provided for in this Agreement or as required by law.
13.1 This Agreement will remain in full force and effect so long as:
(a) the Terms of Use remains in effect; or
(b) the Provider retains any Personal Data related to the Terms of Use in its possession or control (Term).
13.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Terms of Use in order to protect Personal Data will remain in full force and effect.
13.3 The Provider's failure to comply with the terms of this Agreement is a material breach of the Terms of Use. In such event, the Customer may terminate any part of the Terms of Use authorising the processing of Personal Data effective immediately on written notice to the Provider.
13.4 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its obligations, the parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within a reasonable period, they may terminate the Terms of Use on written notice to the other party.
14.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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.
14.2 The data importer and the sub-processor 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 clause 14.1. The Customer shall meet the reasonable costs of the audit.
14.3 At the Customer's request, the Provider will give the Customer a copy of or access to all or part of the Customer's Personal Data in its possession or control in a common electronic format, such as JSON. This may be by provision of a secure internet link from where the Customer may download the Personal Data. The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.
14.4 On termination of the Terms of Use, or termination of the authority to process the Customer’s Personal Data for any reason or expiry of the term of the Terms of Use, the Provider will return all or any Personal Data related to the Terms of Use and this Agreement in its possession or control in a common electronic format, such as JSON(this may be by provision of a secure internet link from where the Customer may download the Personal Data). The Provider makes no warranty as to the compatibility of the Data being provided in such format with any particular software.
14.5 The Provider will certify in writing that it has destroyed the Personal Data if requested todo so by the Customer.
15.1 The Provider will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Customer, including but not limited to,the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 5.1 (Records).
15.2 The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider's compliance with its obligations under this Agreement and the Provider will provide the Customer with copies of the Records upon request.
15.3 The Customer and the Provider must review the information listed in the Annexes to this Agreement periodically to confirm its current accuracy and update it when required to reflect current practices.
16.1 The Customer will pay the Provider’s reasonable costs of any audit carried out under these clauses.
16.2 At the Customer's written request, the Provider will:
(a) conduct an information security audit before it first begins processing any Personal Data and repeat that audit periodically;
(b) produce a written report that includes detailed plans to remedy any security deficiencies identified by the audit;
(c) provide the Customer with a copy of the written audit report; and
(d) remedy any deficiencies identified by the audit within a reasonable period.
17.1 The Customer shall indemnity the Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Provider as a result of the Customer's specific instructions, negligence, wilful default or breach of this Agreement.
18.1 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
18.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 18.1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
18.3 The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
18.4 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in clauses 18.1 and 18.2, arising out of a breach by the sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
ANNEX A Personal Data Processing Purposes and Details
Data exporter
The data exporter is the Customer.
Data importer
The data importer is Noted Limited
Data subjects
The personal data transferred may include:
- the Customer,
- Customer’s staff and contractors,
- Customer’s clients and their families,
- Customer’s suppliers.
Categories of data
The personal data transferred concern the followingcategories of data:
-
- Demographic information, including name, contactdetails and date of birth;
- Financial information, including insuranceinformation
- Occupational information
- The information as described in special categories of data below
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
• Racial or ethnic origin • Religious beliefs
• Health data
• Genetic data
• Sexual history
• Sexual orientation
Processing operations
The personal data transferred will be subject to thefollowing basic processing activities:
• Storage
• Modifying
• Exporting
• Correlation
• Viewing
• Printing
• Deletion as initiated by the Customer in accordance with the functionalities offered by the Noted System
ANNEX B Legal Basis for processing and approved subcontractors
This Annex B forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/ legislation attached):
1. Information Security Program
Noted will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to:
- help Customers secure Customer Data against accidental or unlawful loss, access or disclosure;
- identify reasonably foreseeable and internal risks to security and unauthorised access to Noted systems; and
- minimise security risks, including through risk assessment and regular testing.
Noted will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security
Noted systems will be electronically accessible to employees, subcontractors and any other person as necessary to provide the Services. Noted will maintain access controls and policies to manage what access is allowed to Noted systems by each user, including the use of firewalls or functionally equivalent technology and authentication controls. Noted will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
Noted’s physical facilities are maintained in a secured (locked) state. Locks and alarm systems are in place. Noted provides access to its physical facilities only to those employees and contractors who have a legitimate business need for such access privileges. All electronic access and storage devices are secured at the end of each work day. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked.
2. Continued Evaluation
Noted will conduct periodic reviews of the security of its systems and the adequacy of its information security program as measured against industry security standards and its policies and procedures. Noted will continually evaluate the security of its electronic systems and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
ANNEX C Approved Subcontractors
The Provider's legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions:
- Located in a country with a current determination of adequacy: New Zealand
- Standard Contractual Clauses between Provider as "data exporter" and Provider affiliate orsubcontractor as "data importer".
Approved Subcontractors:
• Amazon Web Services, Inc