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Effective Date:20 November 2024

The customer agreeing to these terms (“Customer”) has entered into either a Terms of Use Agreement or SaaS Services Agreement with ChamberedIn LLC (“ChamberedIn”) under which ChamberedIn has agreed to provide services to Customer (as amended from time to time, the "Agreement"). This Data Protection Addendum, including its applicable Appendices (the “Addendum”) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement.

1. Definitions

For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.

1.1 “Addendum Effective Date” means the date on which the parties agreed to this Addendum.

1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.

1.3 “Audit Reports” has the meaning given in Section 5.4.4 (Audit Reports).

1.4 “CCPA” means the California Consumer Privacy Act of 2018.

1.5 “Customer Personal Data” means any personal data or personal information of data subjects contained within the data provided to or accessed by ChamberedIn by or on behalf of Customer or Customer end users in connection with the Services.

1.6 “Global Data Protection Legislation” means the European Data Protection Legislation, CCPA, and LGPD as applicable to the processing of Customer Personal Data under the Agreement.

1.7 “EEA” means the European Economic Area.

1.8 “EU” means the European Union.

1.9 “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.

1.10 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data of EU data subjects and on the free movement of such data, and repealing Directive 95/46/EC.

1.11 “Information Security Incident” means a breach of ChamberedIn’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in ChamberedIn’s possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

1.12 “LGPD” means the Brazilian General Data Protection Law.

1.13 “Standard Contractual Clauses” or “SCCs” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

1.14 “Security Documentation” means all documents and information made available by ChamberedIn under Section 5.4.1 (Audits).

1.15 “Security Measures” has the meaning given in Section 5.1.1 (ChamberedIn’s Security Measures).

1.16 “Services” means the services and/or products to be provided by ChamberedIn to Customer under the Agreement.

1.17 “Subprocessors” means third parties authorised under this Addendum to process Customer Personal Data in relation to the Services.

1.18 “Term” means the period from the Addendum Effective Date until the end of ChamberedIn’s provision of the Services.

1.19 “Transfer Solution” means the Standard Contractual Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR.

1.20 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR and LGPD, as applicable, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses. The terms “personal information”, “Business”, and “Service Provider” have the meanings set forth in the CCPA.

2. Duration of Addendum

This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, ChamberedIn’s deletion of all Customer Personal Data as described in this Addendum.

3. Processing of Data

3.1 Roles and Regulatory Compliance; Authorization.

3.1.1 Processor and Controller Responsibilities. This Addendum only applies to the extent that we are processing Customer Personal Data on behalf of Customer. If the European Data Protection Legislation, LGPD, or CCPA apply to the processing of Customer Personal Data, the parties acknowledge and agree that:

  1. (a) the subject matter and details of the processing are described in Appendix 1;
  2. (b) ChamberedIn is a processor of that Customer Personal Data under the European Data Protection Legislation or LGPD, and/or a Service Provider with respect to that Customer Personal Data under the CCPA, as applicable;
  3. (c) Customer is a either a controller or processor of that Customer Personal Data under European Data Protection Legislation or LGPD, and/or a Business with respect to that Customer Personal Data under the CCPA, as applicable;
  4. (d) each party will comply with the obligations applicable to it under the applicable Global Data Protection Legislation with respect to the processing of that Customer Personal Data.

3.1.2 Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to ChamberedIn that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of ChamberedIn as another processor and its consent to ChamberedIn’s onward transfers of Customer Personal Data to its Subprocessors, have been authorized by the relevant controller.

3.2 Scope of Processing.

3.2.1 Customer’s Instructions. By entering into this Addendum, Customer instructs ChamberedIn to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Addendum and its Appendices; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by ChamberedIn as constituting instructions for purposes of this Addendum.

3.2.2 ChamberedIn’s Compliance with Instructions. ChamberedIn will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) (“Customer’s Instructions”) unless the applicable Global Data Protection Legislation to which ChamberedIn is subject requires other processing of Customer Personal Data by ChamberedIn, in which case ChamberedIn will notify Customer (unless that law prohibits ChamberedIn from doing so on important grounds of public interest).

4. Data Deletion

4.1 Deletion on Termination. Unless otherwise set forth in the Agreement, upon expiration of the Term, Customer instructs ChamberedIn to delete all Customer Personal Data (including existing copies) from ChamberedIn’s systems as required by and in accordance with applicable law as soon as reasonably practicable, unless applicable law prevents ChamberedIn from deleting such data. To the extent that Customer is bound by laws or regulations that would require ChamberedIn to retain Customer Personal Data after expiration of the Term and Customer does not inform ChamberedIn of such retention obligations, Customer shall be solely liable for any deletion of such data by ChamberedIn in accordance with this Section 4.1.

Data Security

5.1 ChamberedIn’s Security Measures, Controls and Assistance.

5.1.1 ChamberedIn’s Security Measures. ChamberedIn will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Personal Data as described in Appendix 2 (the "Security Measures"). ChamberedIn may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

5.1.2 Security Compliance by ChamberedIn Staff. ChamberedIn will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance and are subject to appropriate confidentiality arrangements.

5.1.3 ChamberedIn’s Security Assistance. ChamberedIn will (taking into account the nature of the processing of Customer Personal Data and the information available to ChamberedIn) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under Global Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR and Articles 6 and 46 of the LGPD, by:

  • (a) implementing and maintaining the Security Measures in accordance with Section 5.1.1 (ChamberedIn’s Security Measures);
  • complying with the terms of Section 5.2 (Information Security Incidents);
  • and (c) providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Addendum.

5.2 Information Security Incidents.

5.2.1 Information Security Incident Notification. If ChamberedIn becomes aware of an Information Security Incident, ChamberedIn will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimize harm and prevent a recurrence.

5.2.2 Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent reasonably practicable, details of the Information Security Incident, including (i) the nature of the Information Security Incident including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; (ii) the name and contact details of the data protection officer or other contact point where more information can be obtained, (iii) the likely consequences of Information Security Incident; (iv) steps taken, or proposed to be taken, to mitigate the potential risks and steps ChamberedIn recommends Customer take to address the Information Security Incident including, where appropriate, measures to mitigate its possible adverse effects.

5.2.3 Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).

5.2.4 No Acknowledgement of Fault by ChamberedIn. ChamberedIn’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by ChamberedIn of any fault or liability with respect to the Information Security Incident.

5.3 Customer’s Security Responsibilities and Assessment.

5.3.1 Customer’s Security Responsibilities. Customer agrees that, without prejudice to ChamberedIn’s obligations under Section 5.1 (ChamberedIn’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):

  • (a) Customer is solely responsible for its use of the Services, including:
    • (i) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
    • (ii) securing the account authentication credentials, systems and devices Customer uses to access the Services;
    • and (iii) securing Customer’s systems and devices ChamberedIn uses to provide the Services;
    • and (iv) backing up its Customer Personal Data.
  • b) ChamberedIn has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of ChamberedIn’s and its Subprocessors’ systems (for example, offline or on-premises storage).

5.3.2 Customer’s Security Assessment.

  • (a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and ChamberedIn’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the applicable Global Data Protection Legislation.
  • (b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by ChamberedIn as set out in Section 5.1.1 (ChamberedIn’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.

5.4 Reviews and Audits of Compliance.

5.4.1 Audits. Customer may audit ChamberedIn’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by the applicable Global Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). ChamberedIn will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.

5.4.2 Objections to Third Party Auditor. If a third party is to conduct the audit, ChamberedIn may object to the auditor if the auditor is, in ChamberedIn’s reasonable opinion, not suitably qualified or independent, a competitor of ChamberedIn, or otherwise manifestly unsuitable. Such objection by ChamberedIn will require Customer to appoint another auditor or conduct the audit itself.

5.4.3 Request for Audit. To request an audit, Customer must submit a detailed proposed audit plan to ChamberedIn at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. ChamberedIn will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise ChamberedIn security, privacy, employment or other relevant policies). ChamberedIn will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 (Reviews and Audits of Compliance) shall require ChamberedIn to breach any duties of confidentiality.

5.4.4 Audit Reports. If the requested audit scope is addressed in an SSAE 16/18/ISAE 3402 Type 2, AICPA SOC 2 (SOC for Service Organizations: Trust Services Criteria), ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and ChamberedIn confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.

5.4.5 Conduct of Audit. The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and ChamberedIn’s health and safety or other relevant policies and may not unreasonably interfere with ChamberedIn business activities.

5.4.6 Conditions of Audit. Customer will promptly notify ChamberedIn of any non-compliance discovered during the course of an audit and provide ChamberedIn any audit reports generated in connection with any audit under this Section 5.4 (Reviews and Audits of Compliance), unless prohibited by The applicable Global Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports and any ChamberedIn information shared during the audit process are Confidential Information of the parties under the terms of the Agreement.

5.4.7 Expenses of Audit. Any audits are at Customer’s expense. Customer shall reimburse ChamberedIn for any time expended by ChamberedIn or its Subprocessors in connection with any audits or inspections under this Section 5.4 (Reviews and Audits of Compliance) at ChamberedIn’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

5.4.8 Standard Contractual Clauses. The parties agree that this Section 5.4 (Reviews and Audits of Compliance) shall satisfy ChamberedIn’s obligations under the audit requirements of the Standard Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).

6. Impact Assessments and Consultations

ChamberedIn will (taking into account the nature of the processing and the information available to ChamberedIn) reasonably assist Customer in complying with its obligations under The applicable Global Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:

6.1 Audit Reports and Security Measures.

Making available for review copies of the Audit Reports or other documentation describing relevant aspects of ChamberedIn’s information security program and the security measures applied in connection therewith;

6.2 Additional Information.

Providing the information contained in the Agreement including this Addendum.

7. Data Subject Rights

7.1 Customer’s Responsibility for Requests.

During the Term, if ChamberedIn receives any request from a data subject in relation to Customer Personal Data, ChamberedIn will, at its sole discretion, (i) advise the Customer of the request, (ii) advise the data subject to submit his or her request to Customer, and/or (iii) notify the data subject that his or her request has been forwarded to the Customer. Customer will be responsible for responding to any such request.

7.2 ChamberedIn’s Data Subject Request Assistance.

ChamberedIn will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfil its obligation under The applicable Global Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR, Articles 18 and 19 of the LGPD, or Section 1798.105 of the CCPA. Customer shall reimburse ChamberedIn for any such assistance beyond providing self-service features included as part of the Services at ChamberedIn’s then-current professional services rates, which shall be made available to Customer upon request.

8. Data Transfers

8.1 Data Storage and Processing Facilities.

ChamberedIn may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere ChamberedIn or its Subprocessors maintains facilities.

8.2 Transfers of Data Out of the EEA.

8.2.1 ChamberedIn’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), ChamberedIn will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.
8.2.2 Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation ChamberedInreasonably requires Customer to use another Transfer Solution offered by ChamberedIn (other than the Standard Contractual Clauses, which are attached hereto as Appendix 3 and incorporated by reference to the extent that Customer is transferring Customer Personal Data out of the EAA or Switzerland to ChamberedIn) and ChamberedIn reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.

8.3 Disclosure of Confidential Information Containing Personal Data.

If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), ChamberedIn will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, Customer and ChamberedIn agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) ChamberedIn or its relevant Affiliate will act on its own behalf and/or on behalf of ChamberedIn’s Affiliates as the data importers.

9. Subprocessors

9.1 Consent to Subprocessor Engagement.

Customer generally authorizes the engagement of any other third parties as Subprocessors and authorizes onward transfer of Customer Personal Data to any Subprocessors engaged by ChamberedIn. If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by ChamberedIn of the processing of Customer Personal Data if such consent is required under the Standard Contractual Clauses.

9.2 Information about Subprocessors.

Information about Subprocessors, including their functions and locations, is available at https://ChamberedIn.com/dpa/subprocessors (as may be updated by ChamberedIn from time to time in accordance with this Addendum).

9.3 Requirements for Subprocessor Engagement.

When engaging any Subprocessor, ChamberedIn will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. ChamberedIn shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

9.4 Idea to Object to Subprocessor Changes.

When any new Subprocessor is engaged during the Term, ChamberedIn will, at least 30 days before the new Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).
Customer may object to any new Subprocessor by providing written notice to ChamberedIn within ten (10) business days of being informed of the engagement of the Subprocessor as described above. In the event Customer objects to a new Subprocessor, Customer and ChamberedIn will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to ChamberedIn.

10. Processing Records

10.1 ChamberedIn’s Processing Records.

Customer acknowledges that ChamberedIn is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which ChamberedIn is acting and, where applicable, of such processor’s or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to ChamberedIn, and will ensure that all information provided is kept accurate and up-to-date.

11. Liability

11.1 Liability Cap.

The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Standard Contractual Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).

11.2 Liability Cap Exclusions.

Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third-party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.

12. Analytics
Customer acknowledges and agrees that ChamberedIn may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify Customer or any natural person, and use, publicize or share with third parties such data to improve ChamberedIn’s products and services and for its other legitimate business purposes.

13. Notices
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by ChamberedIn to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to ChamberedIn’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

14. Effect of These Terms
Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.

Appendix 1

Subject Matter and Details of the Data Processing

This Appendix 1 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).

Data Importer

The Data Importer (or Service Provider/Processor) is ChamberedIn, a provider of a productivity solutions.

Data Exporter

The Data Exporter (or Business/Controller) is the Customer that is a party to the Addendum.

Subject Matter

ChamberedIn’s provision of the Services to Customer as set forth in the Agreement and the Addendum.

Duration of the Processing

The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by ChamberedIn in accordance with the Addendum.

Nature and Purpose of the Processing

ChamberedIn will receive, process, and store Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Agreement and the Addendum, to communicate with Customer and its end users, to provide customer service, to monitor, maintain, and improve the Services, and to otherwise fulfill its obligations under the Agreement.

Categories of Data

  • First and last name
  • Title
  • Position
  • Employer
  • Contact information (company, email, phone, physical business address)
  • ID data
  • Connection data
  • Localization data
  • Other electronic data submitted, stored, sent, or received by an end user (which may include special categories of personal data under the GDPR, or sensitive personal data under the LGPD, to the extent that such data is submitted, stored, sent, or received by an end user; ChamberedIn does not request or require any sensitive or special categories of personal data for provision of the Services)
  • Information related to invoices or payments made for the ChamberedIn service
  • Usage information

Data Subjects

  • Employees, agents, advisors, and/or freelancers of Customer (who are natural persons), and/or individuals about whom data is provided to ChamberedIn via the Services by (or at the direction of) Customer
  • End users authorized by Customer to use the Services

Subprocessors

  • Customer hereby consents to subprocessing by the entities set out at:https://ChamberedIn.com/dpa/subprocessors

Appendix 2

Security Measures

This Appendix 2 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).

As from the Addendum Effective Date, ChamberedIn will implement and maintain the technical and organizational Security Measures set out at https://ChamberedIn.com/security. ChamberedIn may update or modify such Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

Appendix 3

Standard Contractual Clauses

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 the Customer accepting the Clauses pursuant to the Addendum (the “Data Exporter”) And ChamberedIn LLC (the “Data Importer”) Have ChamberedIn 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.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, 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.

Clause 1: Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

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

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

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

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

(f) 'technical and organizational security measures' means those measures aimed at protecting 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.

Clause 2: Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3: 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.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4: Obligations of the data exporter

The data exporter agrees and warrants:

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

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

(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational 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, 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 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).

Clause 5: Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organizational 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 unauthorized access
    • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.

Clause 6: Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

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

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

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

Clause 7: Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

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

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

Clause 8: Cooperation with supervisory authorities

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

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9: Governing Law

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

Clause 10: Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause

Clause 11: Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12: Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.