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Effective Date: December 17, 2019
THIS DATA PROCESSING ADDENDUM (“Addendum”) is incorporated into the Mode Analytics, Inc. (“Mode”) Terms of Service or, as applicable, the agreement between Customer and Mode (“Platform Agreement”) pursuant to which Mode agrees to provide the Mode Services to Customer. This Addendum is intended to ensure that Customer Personal Data is Processed by Mode in accordance with Data Protection Laws.
THE PARTIES AGREE THAT:
1.1
In this Addendum (including the recitals above), the following terms shall have the meanings set out in this clause 1.1, unless expressly stated otherwise:
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“Addendum” |
means this data processing addendum; |
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“Agreement” |
means either the Terms of Service or, if the Customer and Mode entered into the Platform Agreement, the Platform Agreement. |
|
“Anonymised Usage Data" |
means statistics concerning the use of the Mode Services by Data Subjects which (a) has been anonymised and/or aggregated such that the Data Subject is not or is no longer identifiable (e.g. the number query runs per day per user) or (b) constitutes “aggregate consumer information” or has been “deidentified” (as such terms are defined in the CCPA); |
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“CCPA” |
means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time; |
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“Customer” |
means the person, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company, firm or other enterprise, association or organization (including, without limitation, any governmental body or public entity) receiving the Mode Services. |
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“Customer Personal Data” |
means any Personal Data supplied by Customer for analysis using the Mode Services that is Processed by Mode on behalf of Customer pursuant to or in connection with the Agreement; |
|
“Data Protection Laws” |
means all privacy and data protection laws, including the CCPA, GDPR, as well as US and EU national implementing laws, regulations and secondary legislation, in each case, to the extent applicable to the Processing of Customer Personal Data; |
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“Data Subject” |
means the identified or identifiable natural person to whom Personal Data relates; |
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“Data Subject Request” |
means the exercise of rights by Data Subjects of Customer Personal Data under applicable Data Protection Laws; |
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“GDPR” |
means the EU General Data Protection Regulation 2016/679 and to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom; |
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“Mode Services” |
means those services and activities to be supplied to or carried out by or on behalf of Mode for Customer pursuant to the Agreement; |
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“Personal Data” |
means (a) any information relating to an identified or identifiable natural person in connection with the Mode Services and (b) any other information that constitutes personal information as defined in, and which is subject to, the CCPA. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identify of that natural person. |
|
“Personal Data Breach” |
means a breach of Mode’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in Mode’s possession, custody or control. Personal Data Breaches do not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including, without limitation, unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems. |
|
“Process” or “Processing” |
means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; |
|
“Transfer” “Security Documentation” |
means the transfer of Customer Personal Data outside the EU/EEA; means all documents and information made available by Mode under clause 10.210.2; |
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“Standard Contractual Clauses” |
means the standard contractual clauses issued by the European Commission for the transfer of Personal Data from Data Controllers established in the EU/EEA to Data Processors established outside the EU/EEA; |
|
“Subprocessor” |
means any third party appointed by or on behalf of Mode to Process Customer Personal Data; and |
1.2
In this Addendum:
the terms, “Data Controller”, “Data Processor”, “Member State”, and “Supervisory Authority” shall have the meaning ascribed to such terms in the GDPR.
unless otherwise defined herein, all capitalised terms shall have the meaning given to them in the Agreement;
the singular includes the plural and vice versa, unless the context otherwise requires;
references to this Addendum include its Schedules;
references to clauses and/or Schedules are to clauses of, and Schedules to, this Addendum;
the words “including” and “include” shall be construed only as illustration or emphasis and shall not be construed or take effect as limiting the generality of any earlier words;
references to “laws” shall mean (a) any statute, regulation, by-law, or subordinate legislation; (b) the common law and the law of equity; (c) any binding court order, judgment or decree; or (d) any industry code, policy or standard enforceable by law; and
1.3
This Addendum shall be incorporated into and form part of the Agreement. In the event of any conflict or inconsistency between this Addendum and the main body of the Agreement, this Addendum shall prevail.
2.1
Mode shall:
comply with Data Protection Laws as applicable to Mode in Processing Customer Personal Data; and
not Process Customer Personal Data other than
on Customer’s instructions (subject always to clause 2.7); and
as required by applicable laws.
2.2
To the extent permitted by applicable laws, Mode shall inform Customer of:
any Processing to be carried out under clause 2.1(b)(ii); and
the relevant legal requirements that require it to carry out such Processing,
before the relevant Processing unless the relevant law prohibits Mode from doing so on important grounds of public interest.
2.3
Customer instructs Mode to Process Customer Personal Data only as necessary (i) to provide the Mode Services to Customer (including, without limitation, to improve and update the Mode Services, for security or business continuity purposes, troubleshooting and support, accounting purposes, and to carry out Processing initiated by Customer’s users in their use of the Mode Services) and (ii) to perform Mode’s obligations and exercise Mode’s rights under the Agreement. For purposes of CCPA, Mode hereby certifies that it understands the obligations under this Section 2.3 and will comply with them. Notwithstanding anything in the Agreement, this Schedule or any order form entered in connection therewith, the Parties acknowledge and agree that Mode’s access to Customer Personal Data or the exchange of Customer Personal Data between the Parties does not constitute part of the consideration exchanged by the Parties in respect of the Agreement or any other business dealings.
2.4
Schedule 1 to this Addendum sets out certain information regarding Mode’s Processing of Customer Personal Data as required by Article 28(3) of the GDPR.
2.5
If Customer reasonably determines that it is necessary to modify Schedule 1 in order meet any applicable requirements of Data Protection Laws, Customer shall provide a written request to Mode specifying such amendment and the legal necessity for it; provided, however, that no amendment shall be made under this clause without Mode’s prior written consent, which shall not be unreasonably withheld. Nothing in Schedule 1 (including as amended pursuant to this clause 2.5) confers any right or imposes any obligation on any Party to this Addendum.
2.6
Customer acknowledges and agrees that any instructions issued by Customer with regards to the Processing by Mode of Customer Personal Data pursuant to or in connection with the Agreement shall (i) be strictly required for the sole purpose of ensuring compliance with Data Protection Laws, and (ii) not relate to the scope of the Mode Services or otherwise materially change the services to be provided by Mode under the Agreement. Notwithstanding anything to the contrary herein, Mode may terminate the Agreement in its entirety upon written notice to Customer with immediate effect if Mode considers (in its absolute discretion) that (a) it is unable to adhere to, perform or implement any instructions issued by Customer due to the technical limitations of its systems, equipment and/or facilities, and/or (b) to adhere to, perform or implement any such instructions would require disproportionate effort (whether in terms of time, cost, available technology, manpower or otherwise).
2.7
Customer represents and warrants on an ongoing basis that there is, and will be throughout the term of the Agreement, a legal basis under GDPR for the Processing by Mode of Customer Personal Data in accordance with this Addendum and the Agreement (including, without limitation, any and all instructions issued by Customer from time to time in respect of such Processing).
2.8
Customer acknowledges that Mode may create and derive Anonymised Usage Data from processing related to the Mode Services, and use, publicise or share such Anonymized Usage Data with third parties to improve Mode’s services and for its other legitimate business purposes.
Mode will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and have committed themselves to confidentiality or are under an appropriate professional or statutory obligation of confidentiality.
4.1
Mode will implement and maintain technical and organizational measures designed to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access as described in Schedule 2 – Security Measures. Mode may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Mode Services.
4.2
Customer agrees that Mode will (taking into account the nature of the Processing of Customer Personal Data and the information available to Mode) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under the GPDR, including Articles 32 to 34 (inclusive) of the GDPR, by:
implementing and maintaining the Security Measures in accordance with clause 4.1;
complying with the terms of clause 7; and
providing Customer with the Security Documentation in accordance with clause 10.2 and the Agreement including this Addendum.
5.1
Customer generally authorizes Mode’s engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Standard Contractual Clauses, the above authorizations will constitute Customer’s prior written consent to the subcontracting by Mode of the Processing of Customer Personal Data if such consent is required under the Standard Contractual Clauses.
5.2
Information about Subprocessors, including their functions and locations, is set forth in Schedule 3 – Authorized Subprocessors (as may be updated by Mode from time to time in accordance with this Addendum).
5.3
When engaging any Subprocessor, Mode will:
ensure via a written contract that:
the Subprocessor only accesses and uses Customer Personal Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement and any Standard Contractual Clauses entered into 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 (for example, the EU-U.S. Privacy Shield).
the data protection obligations set out in Article 28(3) of the GDPR are imposed on the Subprocessor in a similar manner as described in this Addendum; and
remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor with respect to the provision of Mode Services.
5.4
When any new Third Party Subprocessor is engaged during the term of the Agreement, Mode will, at least thirty (30) days before the new Third Party 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).
5.5
Customer may object to any new Third Party Subprocessor by terminating its use of the Mode Services or, as applicable, the Platform Agreement immediately upon written notice to Mode, on condition that Customer provides such notice within sixty (60) days of being informed of the engagement of the Third Party Subprocessor as described in clause 5.4. This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Third Party Subprocessor.
6.1
During the term of the Agreement, if Mode receives any request from a Data Subject in relation to Customer Personal Data, Mode will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to any such request. Taking into account the nature of the Processing, Mode shall, at Customer’s cost, provide Customer with such assistance as may be reasonably necessary and technically possible in the circumstances, to assist Customer in fulfilling its obligation to respond to Data Subject Requests.
6.2
Mode shall:
notify Customer if Mode receives a Data Subject Request; and
not respond to any Data Subject Request except on the documented instructions of Customer (and in such circumstances, at Customer’s cost) or as required by applicable laws, in which case Mode shall to the extent permitted by applicable laws inform Customer of that legal requirement before Mode responds to the Data Subject Request.
7.1
If Mode becomes aware of a Personal Data Breach, Mode will: (a) notify Customer of the Personal Data Breach promptly and without undue delay after becoming aware of the Personal Data Breach; and (b) promptly take reasonable steps to minimise harm and secure Customer Personal Data.
7.2
Notifications made pursuant to this clause will describe, to the extent possible and known, details of the Personal Data Breach, including steps taken to mitigate the potential risks and steps Mode recommends Customer take to address the Personal Data Breach.
7.3
Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Personal Data Breach(s).
7.4
Mode’s notification of or response to a Personal Data Breach under this clause 7 will not be construed as an acknowledgement by Mode of any fault or liability with respect to the Personal Data Breach
Mode shall provide reasonable assistance to Customer, at Customer’s cost, with any data protection impact assessments, and prior consultations with Supervisory Authorities, which Customer reasonably considers to be required of Customer by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, Mode.
9.1
Upon the expiration of the Subscription Period or earlier termination of the Agreement (the “Term End Date”) subject to clause 9.2, Customer may in its absolute discretion by written notice to Mode within thirty (30) days of the Term End Date require Mode to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Mode; and/or (b) delete and all copies of Customer Personal Data Processed by Mode. Mode shall comply with any such written request as soon as reasonably practicable and in all events within ninety (90) days of the date Customer’s written notice is received by Mode.
9.2
Mode may retain Customer Personal Data after the Term End Date to the extent required by applicable laws.
10.1
Mode will allow an independent auditor appointed by Customer to conduct audits (including inspections) to verify Mode’s compliance with its obligations under this Addendum in accordance with clause 10. Provided, however, Mode may object in writing to an auditor appointed by Customer to conduct any audit if the auditor is, in Mode’s reasonable opinion, not suitably qualified or independent, a competitor of Mode, or otherwise manifestly unsuitable. Any such objection by Mode will require Customer to appoint another auditor.
10.2
In addition to the information contained in the Agreement (including this Addendum), Mode will make available for inspection by Customer the following Security Documentation to assist Customer’s determination of compliance by Mode with its obligations under this Addendum: Mode’s most recent System and Organization Controls (SOC) (SOC 2 Type 1) Report.
10.3
Prior to the commencement of any audit or inspection, Mode and Customer will discuss and agree in advance on: (i) the security and confidentiality controls applicable to any inspection or audit; and (ii) the reasonable start date, scope and duration of and security and confidentiality controls applicable to any audit.
10.4
Customer shall give Mode reasonable notice of any audit or inspection to be conducted under clause 10.1 (which shall in no event be less than thirty (30) days’ notice unless required by a Supervisory Authority pursuant to clause 10.4(f)(ii)) and shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing, and hereby indemnifies Mode in respect of, any damage, injury or disruption to Mode’s premises, equipment, personnel, data, and business (including any interference with the confidentiality or security of the data of Mode’s other customers or the availability of the Mode Services to such other customers) while its personnel are on those premises in the course of such an audit or inspection. Provided, however, that Mode need not give access to its premises, equipment, personnel, data, business, Security Documentation or systems for the purposes of such an audit or inspection:
to any individual unless he or she produces reasonable evidence of identity and authority;
to any auditor whom Mode has not given its prior written approval;
unless the auditor enters into a non-disclosure agreement with Mode on terms acceptable to Mode;
where, and to the extent that, Mode considers, acting reasonably, that to do so would result in interference with the confidentiality or security of the data of Mode’s other customers or the availability of the Mode Services to such other customers;
outside normal business hours at those premises; or
on more than one (1) occasion in each period of twelve (12) months during the term of the Agreement (or where the term of the Agreement is less than twelve (12) months, on more than one (1) occasion during such shorter term), except for any additional audits or inspections which:
Customer reasonably considers necessary because of a Personal Data Breach; or
Customer is required to carry out by Data Protection Law or a Supervisory Authority or other regulator,
where Customer has identified the Personal Data Breach or the legal relevant requirement in its notice to Mode of the audit or inspection.
10.5
The Parties shall discuss and agree the costs of any inspection or audit to be carried out by or on behalf of Customer pursuant to this clause 10 in advance of such inspection or audit and, unless otherwise agreed in writing between the Parties, Customer shall bear any third party costs in connection with such inspection or audit and reimburse Mode for all costs incurred by Mode and time spent by Mode (at Mode’s then-current professional services rates) in connection with any such inspection or audit.
10.6
Nothing in this clause 10 varies or modifies any rights or obligations of Customer or Mode under any Standard Contractual Clauses entered into by the parties.
11.1
Mode may store and Process Customer Personal Data anywhere Mode or its Subprocessors maintains facilities. Mode will provide information about the location of its data centers used to Process Customer Personal Data upon request.
11.2
To the extent applicable, in order to allow Transfers under this Addendum to take place under applicable Data Protection Laws, Customer agrees that:
the Standard Contractual Clauses shall be entered into by and between Customer as the “data exporter” and Mode as the “data importer” and will apply to all Processing of Customer Personal Data by Mode under this Addendum; and
in respect of any Transfer from Mode to a Subprocessor, Customer agrees that the Standard Contractual Clauses shall be entered into by and between Mode as agent for Customer as the “data exporter” and the Subprocessor as the “data importer”.
Customer acknowledges that Mode may be required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each Data Processor and/or Data Controller on behalf of which Mode is acting and, where applicable, of such Data Processor’s or Data Controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, Customer will, where requested, provide such information to Mode, and will ensure that all information provided is kept accurate and up-to-date.
13.1
If Standard Contractual Clauses have been entered into, the total combined liability of either party towards the other party under or in connection with the Agreement and such Standard Contractual Clauses combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to clause 13.2.
13.2
Nothing in clause 13.1 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 GDPR or other laws.
SCHEDULE 1 – DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Schedule 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter of the Processing of Customer Personal Data
Mode’s provision of the Mode Services to Customer
Nature and Purpose of the Processing
Mode will process Customer Personal Data for the purposes of providing the Mode Services to Customer in accordance with the Addendum.
Duration of the Processing
From the Effective Date of the Agreement until deletion of all Customer Personal Data by Mode in accordance with the Addendum.
The Categories of Customer Personal Data to be Processed
Data relating to individuals provided to Mode in connection with the Mode Services, by (or at the direction of) Customer.
The Categories of Data Subject to Whom the Customer Personal Data Relates
Data subjects include the individuals about whom Mode Processes data in connection with the Mode Services.
The Obligations and Rights of Customer
The obligations and rights of Customer are set out in the Agreement and this Addendum.
SCHEDULE 2 – SECURITY MEASURES
Mode will implement and maintain the Security Measures set out in this Schedule 2. Mode reserves the right to revise the security measures set out in this Schedule 2 at any time, without notice, so long as such revisions do not materially reduce the protection provided for Personal Data that Mode processes in the course of providing the Mode Services.
1) Organizational management and staff responsible for the development, implementation and maintenance of Mode’s information security controls. Executive leadership is involved in reviewing and approving all security policies.
2) Audit and risk assessment procedures for the purposes of periodic review and assessment of security risks to Mode’s organization, monitoring compliance with Mode’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
3) Data security controls that include logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Personal Data.
a) Encryption in Transit: Customer content is encrypted in transit using Transport Layer Security. TLS is active on all accounts by default and cannot be disabled by end users.
b) Encryption at Rest: Confidential customer data is encrypted at rest with Advance Encryption Standard (AES). Backups are encrypted at rest.
4) Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions. Access accounts are provisioned for engineers on their hire date and deprovisioned on their closing date by a member of the senior engineering staff.
5) User IDs and password configuration requirements have been established that are designed to prevent unauthorized access to production systems. Mode has defined the following password requirements: (i) password length must have a minimum of 10 characters; (ii) password must contain both upper and lowercase characters; (iii) password must contain a number (0-9) and/or a special character; (iv) Password must be different from user's previous 10 passwords; and (v) password must be changed annually.
6) With respect to physical and environmental security, Mode’s production resources are hosted in Amazon Web Services. Physical and environmental security is handled entirely by Amazon and their vendors. Amazon has provided a list of compliance and regulatory security assurances, including representations of SOC 1-3, and ISO27001 compliance.
7) Operational procedures and controls to provide for application deployment and change management, capacity management, and separation of development, testing and production.
8) Incidents are handled in accordance with Mode’s Incident Response Plan following the lifecycle of an incident: Discovery, Acknowledgement, Verification, Scope, Resolution and finally Response. The Privacy Officer(s) and Director of Engineering are responsible for managing the response process in accordance with the IRP, completing an after-action review and coordinating any outbound communication that may be necessary following an incident.
9) Network security controls designed and implemented so that internet connections are required to use transport encryption. Default deny has been established for each application/service group/layer. Service to service connections must be explicitly allowed.
10) Vulnerability assessment and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
11) Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
SCHEDULE 3 – AUTHORIZED SUBRPOCESSORS
The list of authorized sub-processors is available here.
SCHEDULE 4 – STANDARD CONTRACTUAL CLAUSES
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 of the data exporting organisation:
Customer on its own behalf as a controller, or as agent for controllers to the extent Customer is acting as a processor.
and
Name of the data importing organisation: Mode Analytics, Inc.
Address: 208 Utah Street, #400, San Francisco, California 94103
Tel.: 415-689-7436 ; fax: [N/A] ; e-mail: hi@modeanalytics.com
Other information needed to identify the organization: [N/A]
(the data importer)
each a party; together the parties,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security’ measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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 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.
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.
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:
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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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;
that it will ensure compliance with the security measures;
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;
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;
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;
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
that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
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;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
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;
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;
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;
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;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
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.
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
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.
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
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.
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
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.
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.
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
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix 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.
Data exporter
The data exporter is:
Customer on its own behalf as a controller, or as agent for controllers to the extent Customer is acting as a processor.
and
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
Mode Analytics, Inc.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
Data subjects include the individuals about whom Mode Processes data in connection with the Mode Services.
Categories of data
Data relating to individuals provided to Mode in connection with the Mode Services, by (or at the direction of) Customer.
Special categories of data (if appropriate)
Data relating to individuals provided to Mode in connection with the Mode Services, by (or at the direction of) Customer.
Processing operations
Mode will process Customer Personal Data for the purposes of providing the Mode Services to Customer in accordance with the Addendum.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix 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) (or document/legislation attached):
See SCHEDULE 2 – SECURITY MEASURES
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