DATA PROTECTION SCHEDULE 3: GDPR ATTACHMENT
Under the Agreement, the Subscriber engages GetKambium to provide the Services and in providing the Services, GetKambium will or may be required to Process Personal Data on behalf of the Subscriber. To the extent of that Processing of Personal Data and for the purposes of the Agreement, the Subscriber is a ‘Controller’ and GetKambium is a ‘Processor’ for the purposes of the GDPR. As such, Article 28 of the GDPR requires that the details in this attachment are included in the contract between the Subscriber and GetKambium.
The parties must set out the subject matter and duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and categories of data subjects – see appendix 1 to this attachment. If GetKambium determines the purposes and means of Processing, GetKambium is considered a ‘Controller’ in respect of that Processing in which case GetKambium needs to consider and address the different and additional provisions of the GDPR that apply.
The terms used in this attachment have the meanings given to them in the main definition section of the Agreement or in clause 13 of this attachment, or in the GDPR if not defined in the Agreement.
1 Processing of Personal Data
1.1 GetKambium will:
(a) Instructions from Subscriber: in providing Services under the Agreement, Process Personal Data only on the Subscriber’s documented instructions (as provided in clause 2 and in appendix 1 to this attachment or otherwise in writing) unless required to do so by Data Protection Laws in which case GetKambium will inform the Subscriber of that legal requirement before Processing unless GetKambium is prohibited from informing the Subscriber by that law;
(b) Confidentiality: ensure that GetKambium’s personnel who are authorised to Process the Personal Data have obligations of confidentiality to GetKambium (including as required in clause 3 below) in respect of the Personal Data or are under an appropriate statutory obligation of confidentiality;
(c) Security: comply with the security obligations in clause 4 below;
(d) Subprocessors: comply with the provisions relating to Subprocessors in clause 5 below;
(e) Data subjects’ rights: provide assistance to the Subscriber with responding to data subjects’ rights in accordance with clause 6 below;
(f) Assist Subscriber: comply with its obligations to assist the Subscriber in relation to security of Personal Data and data protection impact assessments and prior consultation in accordance with clause 7 below;
(g) Deleting and retuning data: after the provision of Services related to Processing of Personal Data has ended, at the choice of the Subscriber either delete or return to the Subscriber all of that Personal Data and delete existing copies unless the Data Protection Laws require storage of Personal Data in accordance with clause 8 below; and
(h) Compliance and audits: make available to the Subscriber all information necessary to demonstrate compliance with Article 28 of the GDPR and allow for and contribute to audits including inspections conducted by the Subscriber or another auditor mandated from time to time, in accordance with clause 9 below. GetKambium will immediately inform the Subscriber if, in its opinion, an instruction received from the Subscriber infringes the Data Protection Laws.
2 Instructions from Subscriber
2.1 The Subscriber instructs GetKambium (and authorises GetKambium to instruct each Subprocessor) to:
(a) Process Personal Data; and
(b) in particular, transfer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with and in compliance with the Agreement.
2.2 The Subscriber warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in clause 2.1 on behalf of the Subscriber.
3.1 GetKambium will take reasonable steps to ensure the reliability of its employees, agents or contractors who may have access to Personal Data, ensuring in each case that access is limited to those individuals who need to know or need to access the relevant Personal Data, as necessary for the purposes of the Agreement, and to comply with applicable laws in the context of that individual’s duties to GetKambium, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Subject to clause 4.2 below, GetKambium will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including amongst other things 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;
(d) a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
4.2 In assessing the appropriate level of security for clause 4.1 above, GetKambium will take account in particular of the risks of a Personal Data Breach that are presented by the Processing to be undertaken under the Agreement.
4.3 GetKambium will in relation to Personal Data:
(a) implement and maintain appropriate information security to protect Personal Data against:
i. a Personal Data Breach;
ii. all other unauthorized or unlawful forms of Processing; and
iii. any breach of GetKambium’s information security obligations in this attachment. GetKambium will (and will ensure that its Sub-processors) provide full cooperation and assistance to the Subscriber in ensuring that the individuals´ rights under the Data Protection Laws are timely and appropriately addressed for the fulfilment of the Subscriber’s obligation to respond without undue delay to requests by such individuals as required by Data Privacy Laws, including the rights of subject access, rectification, erasure, and portability, and the right to restrict or object to certain Processing;
(b) take reasonable steps to inform its staff, and any other person acting under its supervision, of the responsibilities of any Data Privacy Laws due to the incidental access to Personal Data, and ensure the reliability of its staff and any other person acting under its supervision who may come into contact with, or otherwise have access to and Process, such Personal Data.
5.1 The Subscriber authorises GetKambium to appoint Subprocessors (and permits each Subprocessor appointed in accordance with this clause 5 to appoint Subprocessors) in accordance with this clause 5 and any restrictions in the Agreement.
5.2 GetKambium will give the Subscriber prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within two weeks of receipt of that notice, the Subscriber notifies GetKambium in writing of any objections (on reasonable grounds) to the proposed appointment, GetKambium will not appoint (nor disclose any Personal Data to) the proposed Subprocessor unless and until it obtains the prior written consent of the Subscriber.
5.3 With respect to each Subprocessor, GetKambium will:
(a) enter into an agreement with the Subprocessor which includes the same data protection obligations as set out in this attachment (and Appendix 1) and in particular includes sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. If the Subprocessor fails to fulfil its data protection obligations, GetKambium will remain fully liable to the Subscriber for the performance of that Subprocessor’s obligations;
(b) if the Processing by the Subprocessor will involve a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between GetKambium and the Subprocessor; and
(c) provide to the Subscriber for review, copies of GetKambium’s agreements with Subprocessors (confidential commercial information that is not relevant to the requirements of this attachment may be blacked out) as the Subscriber may request from time to time.
5.4 Appendix 1 to this attachment sets out certain information regarding GetKambium’s Processing of Personal Data, as required by article 28(3) of the GDPR. The Subscriber may make reasonable amendments to Appendix 1 by written notice to GetKambium from time to time as the Subscriber reasonably considers necessary to meet those requirements.
6 Data Subjects’ Rights
6.1 Taking into account the nature of the Processing, GetKambium will, by implementing appropriate technical and organisational measures to the extent described in clause 4, assist the Subscriber to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 GetKambium will:
(a) promptly notify the Subscriber if GetKambium or any Subprocessor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
(b) ensure that GetKambium or relevant Subprocessor does not respond to that request except on the documented instructions of the Subscriber or as required by Applicable Laws to which they are subject, in which case GetKambium will to the extent permitted by Applicable Laws inform the Subscriber of that legal requirement before GetKambium or relevant Subprocessor responds to the request.
7 Assist Subscriber
7.1 Assist Subscriber with Security of Processing:
(a) GetKambium will assist the Subscriber in respect of the Subscriber’s obligations to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, by complying with GetKambium’s obligations under clause 4 of this attachment.
7.2 Assist Subscriber with notifications of Personal Data Breach
(a) GetKambium will notify the Subscriber without undue delay if GetKambium or any Subprocessor becomes aware of a Personal Data Breach, providing the Subscriber with sufficient information to allow the Subscriber to meet any obligations to report the Personal Data Breach to the relevant Supervisory Authority under the Data Protection Laws (noting that the Subscriber is required, where feasible, to notify applicable Personal Data breaches to the relevant Supervisory Authority within 72 hours after having become aware of the breach).
(b) GetKambium will co-operate with the Subscriber and take such reasonable commercial steps as are directed by the Subscriber to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
7.3 Assist Subscriber with communication of Personal Data breach to Data Subject
(a) Where a Personal Data Breach is likely to result in a high risk to the rights and freedoms of natural persons:
i. such that the Subscriber is required to communicate the Personal Data Breach to the Data Subject (including where, despite the conditions referenced in clause 7.3(a)(ii) below being met, the Supervisory Authority has required the Subscriber to communicate the Personal Data Breach to the Data Subject), GetKambium will assist the Subscriber in doing so by providing all relevant information as may be reasonably required by the Subscriber;
ii. but despite that high risk, the Subscriber is not required to communicate the Personal Data Breach to the Data Subject due to certain conditions being met (such as that the Personal Data is encrypted and so unintelligible to any person not authorised to access it), GetKambium will assist the Subscriber by providing all relevant information as may be reasonably required by the Subscriber.
7.4 Assist Subscriber with Data Protection Impact Assessments
(a) GetKambium will provide reasonable assistance to the Subscriber with any data protection impact assessments which the Subscriber reasonably considers to be required of the Subscriber by Article 35 of the GDPR or equivalent provisions of related Data Protection Laws. GetKambium’s obligations under this clause 7.4(a) are solely in relation to Processing of Personal Data by GetKambium and taking into account the nature of the Processing and information available to GetKambium.
7.5 Assist Subscriber with Prior Consultation with Supervisory Authority
(a) GetKambium will provide reasonable assistance to the Subscriber with prior consultations with Supervising Authorities or other competent data privacy authorities, which the Subscriber reasonably considers to be required of the Subscriber by Article 36 of the GDPR or equivalent provisions of related Data Protection Laws. GetKambium’s obligations under this clause 7.5(a) are solely in relation to Processing of Personal Data by GetKambium and taking into account the nature of the Processing and information available to GetKambium.
8 Deletion or return of Personal Data
8.1 Subject to clauses 8.2 and 8.3, GetKambium will, within four weeks of the date of expiration or termination of Services involving the Processing of Personal Data (the “End of Processing Date”), delete and procure the deletion of all copies of the Personal Data.
8.2 Subject to clause 8.3, the Subscriber may in its absolute discretion by written notice to GetKambium within two weeks of the End of Processing Date require GetKambium to:
(a) return a complete copy of all Personal Data to the Subscriber by secure file transfer in such format as is reasonably notified by the Subscriber to GetKambium; and
(b) delete and procure the deletion of all other copies of Personal Data Processed by GetKambium. GetKambium will comply with any such written request within four weeks of the End of Processing Date.
8.3 GetKambium may retain Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that GetKambium will:
(a) ensure the confidentiality of all such Personal Data;
(b) ensure that such Personal Data is only processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
8.4 GetKambium will provide written certification to the Subscriber that it has fully complied with this clause 8 within four weeks following the End of Processing Date.
9 Audit rights
9.1 Subject to clauses 9.2 to 9.4, GetKambium will make available to the Subscriber on request all information necessary to demonstrate compliance with this attachment, and will allow for and contribute to audits, including inspections, by the Subscriber or an auditor mandated by the Subscriber in relation to the Processing of Personal Data by GetKambium.
9.2 Information and audit rights of the Subscriber only arise under clause 9.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR).
9.3 GetKambium may, on reasonable grounds, object to the proposed auditor in which case the Subscriber will propose an alternate auditor.
(a) The Subscriber will give GetKambium reasonable notice of any audit or inspection to be conducted under clause 9.1 and will make (and ensure that its auditor makes) reasonable endeavours to avoid causing any damage, injury or disruption to GetKambium’s premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. GetKambium need not give access to its premises for the purposes of such an audit or inspection for the purposes of more than one audit or inspection in any calendar year, except for any additional audits or inspections which:
i. the Subscriber reasonably considers necessary because of genuine concerns as to GetKambium’s compliance with this attachment; or
ii. the Subscriber is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where the Subscriber has identified its concerns or the relevant requirement or request in its notice to GetKambium of the audit or inspection.
10 Restricted Transfers
10.1 Subject to clause 10.3, where the Services involve a ‘Restricted Transfer’, the Subscriber (as “data exporter”) and GetKambium (as “data importer”) each agrees to the Standard Contractual Clauses in respect of that Restricted Transfer.
10.2 The Standard Contractual Clauses will come into effect under clause 10.1 on the later of:
(a) the data exporter becoming a party to them;
(b) the data importer becoming a party to them; and
(c) commencement of the relevant Restricted Transfer.
10.3 There is no requirement for GetKambium and Subscriber to agree to the Standard Contractual Clauses (or to include the Standard Contractual Clauses in the Agreement) where the transfer of Personal Data is to a country within the EEA or to an Approved Jurisdiction.
11 Order of precedence
11.1 Nothing in this attachment reduces GetKambium’s obligations under the Agreement in relation to the protection of Personal Data or permits GetKambium to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this attachment and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail.
11.2 Subject to clause 11.1, in the event of inconsistencies between the provisions of this attachment and the other parts of the Agreement, the provisions of this attachment will prevail.
12 Changes in Data Protection Laws
12.1 The Subscriber may by at least 30 calendar days’ written notice to GetKambium:
(a) vary the Standard Contractual Clauses (if applicable), as they apply to Restricted Transfers which are subject to non-UK data protection laws, as required as a result of any change in, or decision of a competent authority under, that data protection law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that data protection law; and
(b) propose any other variations to this attachment which the Subscriber reasonably considers to be necessary to address the requirements of any data protection law.
12.2 If the Subscriber gives notice under clause 12.1(a):
(a) GetKambium will promptly co-operate (and require affected Subprocessors to promptly co-operate) to ensure that equivalent variations are made to the agreements made under clause 5.3; and
(b) the Subscriber will not unreasonably withhold or delay agreement to any consequential variations to this attachment proposed by GetKambium to protect GetKambium against additional risks associated with the variations made under this clause 12.2.
12.3 If the Subscriber gives notice under clause 12.1(b), the parties will promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Subscriber’s notice as soon as is reasonably practicable.
In this attachment:
“Approved Jurisdiction” means that a country for which an adequacy decision is in place pursuant to UK Data Protection Act 2018 which includes all countries for which the European Commission has made a finding of adequacy (where that decision has not been revoked by the European Commission), and all EEA countries;
“Contracted Processor” means GetKambium or a Subprocessor;
“Data Subject” means an identified or identifiable natural person, or any updated definition of this term from time to time in the GDPR;
“EEA” means the European Economic Area;
“Information Security Obligations” means commercially reasonable and appropriate physical, technical and organisational security measures (determined with regard to risks associated with the Processing of Personal Data as part of the Services), including the measures set out in the Agreement and in particular in the Standard Contractual Clauses (where applicable).
“Restricted Transfer” means transferring Personal Data outside of the United Kingdom, whether this is:
(a) a transfer of Personal Data from the Subscriber to GetKambium or to a Subprocessor; or
(b) an onward transfer of Personal Data from one Contracted Processor to another Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer means would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws), in the absence of the Standard Contractual Clauses;
“Services” means, for the purposes of this GDPR Attachment, the GetKambium Portal and/or the Licensed Software (as applicable) and any related services supplied to or carried out by or on behalf of GetKambium for the Subscriber under the Agreement;
“Subprocessor” means any person (including any third party, but excluding an employee of GetKambium or any of its sub-contractors) appointed by or on behalf of GetKambium to Process Personal Data on behalf of the Subscriber in connection with the Agreement;
“Standard Contractual Clauses” means the standard contractual clauses issued by the European Commission (EU controller to non-EU or EEA processor),
The term “Supervisory Authority” has the meaning given to that term in the GDPR, and corresponding terms have corresponding meanings.
Appendix 1 to GDPR Attachment
Details of Processing of Personal Data
This Appendix 1 includes certain details of the Processing of Personal Data as required by Article 28(3) GDPR.
1. Subject matter and duration of the Processing of Personal Data
(a) Marketing contacts, for the purpose of marketing GetKambium, e.g. email addresses, for use in accordance with accepted practices
(b) Contact data for the purpose of maintaining GetKambium subscriptions, both free and premium
(c) Payment data for the purpose of processing payments for premium subscriptions
(d) Personal data entered by subscribers for the purpose of their use of the portal to support their clients
2. The types of Personal Data to be Processed
(a) Personal data will include contact details for the purpose of communicating with subscribers, and
(b) payment data for Premium Subscription for the purpose of facilitating a transaction, in particular credit card details.
3. The obligations and rights of the Subscriber
The obligations and rights of the Subscriber are set out in the Agreement and this attachment.
Appendix 2 to GDPR Schedule
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name and contact details of the data exporting organisation:
The Subscriber (as defined in the End User Terms)
Contact details: Refer to definition of ‘Subscriber Information’ in the End User Terms
(the data exporter)
Name and contact details of the data importing organisation:
GetKambium (as defined at the beginning of the End User Terms).
Contact details: refer to definition of GetKambium at the beginning of the End User Terms.
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
The data exporter has agreed to the Agreement issued by the data importer. Pursuant to the Agreement, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
For the purposes of the Clauses
a) personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
b) ‘the data exporter’ means the controller who transfers the personal data;
c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the United Kingdom;
f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
a) The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
b) The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
c) 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.
Obligations of the data exporter
The data exporter agrees and warrants:
a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities in the United Kingdom and does not violate the relevant provisions of that State;
b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
e) that it will ensure compliance with the security measures;
f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of the Data Protection Laws;
g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
d) that it will promptly notify the data exporter about:
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 subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
a) The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
b) If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
c) The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
d) If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
a) The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the United Kingdom.
b) 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.
Cooperation with supervisory authorities
a) 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.
b) The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
c) The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the laws of the European Union
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
a) The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
b) The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
c) The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the laws of England and Wales.
d) The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
a) The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
b) The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Annex 1 to the Standard Contractual Clauses
This Annex forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is: The Subscriber
The data importer is: GetKambium
The personal data transferred concern the following categories of data subjects:
- Marketing contacts, for the purpose of marketing GetKambium, e.g. email addresses, for use in accordance with accepted practices
- Contact data for the purpose of maintaining GetKambium subscriptions, both free and premium
- Payment data for the purpose of processing payments for premium subscriptions
- Personal data entered by subscribers for the purpose of their use of the portal to support their clients
Categories of data
The personal data transferred concern the following categories of data:
- Personal data will include contact details for the purpose of communicating with subscribers, and
- payment data for Premium Subscription for the purpose of facilitating a transaction, in particular credit card details.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
The personal data transferred will be subject to the following basic processing activities:
- Collection, analysis and reporting to support the provision of services by the subscribers for their clients
- Transactions required to process the administration of the subscription for the subscriber continued access to the GetKambium platform
Annex 2 to the Standard Contractual Clauses
This Annex forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
- Data is held in a secure cloud-hosted environment, subject to ongoing security monitoring and regular security reviews
- Personnel have regular cyber-security training and renewal programmes
- Ongoing reviews of the cloud providers security recommendations are applied to the platform to ensure compliance with recognised best practices