DATA PROCESSING ADDENDUM with EU Standard Contractual Clauses

Transcription

1 DATA PROCESSING ADDENDUM with EU Standard Contractual Clauses This Data Processing Addendum ("Addendum") forms part of the Agreement between Snow and Company (each as defined below). This Addendum is only valid and legally binding if the Company entity signing this Addendum is a party to the Agreement and the Company is a data controller to which the Data Protection Laws apply. If the Company entity signing this Addendum is not a party to the Agreement, such entity should request that the Company entity who is a party to the Agreement execute this Addendum. Additionally, if the Company entity signing the Addendum is a customer indirectly via an authorized partner, this Addendum is not valid and is not legally binding. Such entity should contact the authorized partner to discuss whether any amendment to its agreement with that partner may be required. This Addendum has been pre-signed by Snow and any modifications to the terms of this Addendum (whether handwritten or otherwise) will render this Addendum ineffective unless Snow has separately agreed to those modifications in writing. To complete this Addendum, Company must: 1. Complete the "data exporter" details on the first page of Exhibit A (page 8) 2. Complete and sign each of the four customer/data exporter signature blocks (pages 5, 12, 13, and 14). 3. Send the completed and signed Addendum to Snow by , indicating the name and date of the Agreement, to dpo@snowsoftware.com. Upon receipt of the validly completed Addendum by Snow at this address, this Addendum will become legally binding. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum. In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. 1. Definitions 1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly: "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity Agreement means the collective agreements between Company and Snow under which Snow provides Services to Company. Such agreement may have various titles, such as Order Form, Master Services Agreement, Software License and Support Agreement, or End User License Agreement Authorized Affiliate means any of Company s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement, but is not a "customer" as defined under the Agreement; Company means the company named in the signature block of the Agreement together with Authorized Affiliates; "Contracted Processor" means Vendor or a Subprocessor; "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country; "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR; "GDPR" means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); 1 of 15

2 1.1.9 "Personal Data" means personal data that is submitted to the Services by Company and processed by a Contracted Processor for the purpose of providing the Services to Company; Personal Data Breach means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data "Services" means the services and other activities ordered or subscribed to by Company from Snow in the Agreement; "Standard Contractual Clauses" means the contractual clauses based on Commission decision C(2010)593 Standard Contractual Clauses (processors) set out in Exhibit A, amended as indicated under section 11.2; Snow means the Snow Software entity named in the signature block of the Agreement; and "Subprocessor" means any person or entity (including any third party and any Snow Affiliate, but excluding an employee of Snow or any of its sub-contractors) appointed by or on behalf of Snow or any Snow Affiliate to process Personal Data on behalf of Snow in connection with the Agreement. 1.2 The terms, "commission", "controller", "data subject", "member state", "personal data", process, "processing" and "supervisory authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly. 2. Processing of Personal Data 2.1 As between Snow and Company, Snow will process Personal Data under the Agreement only as a processor acting on behalf of the Company. 2.2 Snow will only process Personal Data on behalf of and in accordance with Company s documented instructions. Company instructs Snow to process Personal Data for the following purposes: (i) as reasonably necessary for the provision of the Services and consistent with the Agreement; (ii) processing initiated by Company s end users in their use of the Services; and (iii) to comply with other reasonable instructions provided by Company via support ticket, , or otherwise where such instructions are consistent with the terms of the Agreement. 2.3 The subject matter of the processing of Personal Data is the provision of the Services under the Agreement. Snow will process Personal Data for the duration of the Agreement, unless otherwise agreed between Snow and Company in writing or as required by applicable law. The nature and purpose of Snow s processing of Personal Data is to perform the Services pursuant to the Agreement and as instructed by Company in its use of the Services. The Personal Data processed may include, but is not limited to the following categories of data subjects: Company s end users, employees, contractors, suppliers, and vendors (who are natural persons), and other third parties. The Personal Data processed may include, but is not limited to the following categories: name, title, localization data, identification data, address, or phone number. 2.4 Company shall, in its use or receipt of the Services, process Personal Data in accordance with the requirements of Data Protection Laws and ensure that its instructions for the processing of Personal Data shall comply with Data Protection Laws. Company shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Company acquired Personal Data. Company takes full responsibility to keep the amount of Personal Data provided to Snow to the minimum necessary for the performance of the Services. 3. Personnel Snow restricts its personnel from processing Personal Data without authorization (unless required to so by applicable law) and will ensure that any person authorized by Snow to process Personal Data is subject to an obligation of confidentiality. Snow shall take commercially reasonable steps to ensure the reliability of any Snow personnel engaged in the processing of Personal Data. Snow shall ensure that its access to Personal Data is limited to those personnel performing Services in accordance with the Agreement. 4. Security 4.1 Snow shall in relation to the Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. 4.2 In assessing the appropriate level of security, Snow shall take account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. 5. Subprocessing 2 of 15

3 5.1 Company authorizes (a) Snow to appoint Snow s Affiliates as Subprocessors; and (b) Snow and Snow s Affiliates to appoint third-parties as Subprocessors in connection with the provision of the Services. As a condition to appointing a third-party as a Subprocessor, Snow or a Snow Affiliate will enter into a written agreement with each third-party Subprocessor containing data protection obligations that provide at least the same level of protection for Personal Data as those in this Addendum (to the extent applicable to the Services provided by such third-party Subprocessor). Snow will be responsible for any acts and omissions of its Subprocessors that cause Snow to breach any of Snow s obligations under this Addendum. 5.2 Snow may continue to use those Subprocessors already engaged by Snow as of the date of this Addendum, and a list of such Subprocessors will be made available at or provided by Snow to Company upon Company s request. 5.3 If Company sends an to dpo@snowsoftware.com with the subject Subprocessor Notice, Snow shall send written notice to the requesting Company address of the appointment of any new Subprocessor before authorizing any new Subprocessor to process Personal Data in connection with the provision of the applicable Services. If, within 10 business days of receipt of that notice, Company notifies Snow in writing of any objections to the proposed appointment: Snow shall work with Company in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and where such a change cannot be made within 30 days from Snow s receipt of Company's notice, notwithstanding anything in the Agreement, Company may by written notice to Snow terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor. 6. Data Subject Rights 6.1 Taking into account the nature of the processing, Snow shall assist Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company s obligations, as reasonably understood by Company, to respond to requests to exercise data subject rights under the Data Protection Laws in respect to Personal Data ( Data Subject Request ). 6.2 Snow shall: promptly notify Company if Snow receives a Data Subject Request; not respond to a Data Subject Request except on the documented instructions of Company or as required by applicable laws, in which case Snow shall to the extent permitted by applicable laws inform Company of that legal requirement before responding to the Data Subject Request; and to the extent Company does not have the ability to address a Data Subject Request in relation to the Services, Snow shall, upon Company s request, provide commercially reasonable efforts to assist Company to the extent Snow is legally permitted to do so and the response is required under Data Protection Law. To the extent permitted by applicable law, Company shall be responsible for any costs arising from Snow s provision of such assistance. 7. Personal Data Breach 7.1 Snow shall notify Company without undue delay upon Snow becoming aware of a Personal Data Breach affecting Personal Data which may require a notification to be made to a supervisory authority or data subject under Data Protection Law or which Snow is required to notify to Company under Data Protection Law, providing Company with sufficient information to allow Company to meet any obligations to report or inform data subjects of the Personal Data Breach under Data Protection Law. 7.2 To the extent such Personal Data Breach is caused by a violation of this Addendum by Snow, Snow shall provide commercially reasonable cooperation and assistance in identifying the cause of such Personal Data Breach and take commercially reasonable steps to remediate the cause to the extent the remediation is within Snow s control. 8. Data Protection Impact Assessment and Prior Consultation Snow shall provide reasonable assistance to Company with any data protection impact assessments, and prior consultations with supervising authorities or other competent data privacy authorities, which Company reasonably considers to be required of Company by Data Protection Law, in each case solely in relation to processing of Personal Data taking into account the nature of the processing and information available to Snow. 9. Deletion or Return of Personal Data 9.1 Upon expiration or termination of the Services involving the processing of Personal Data, Snow shall, upon Company s request, and subject to any limitations described in the Agreement, return to Company, or securely destroy, all Personal Data 3 of 15

4 and demonstrate to Company s satisfaction that Snow has taken such measures, unless applicable law prevents it from returning or destroying all or part of Personal Data. Snow shall preserve the confidentiality of any retained Personal Data and will only actively process such Personal Data after such date as required by applicable law and in accordance with this Addendum. 10. Audit Rights 10.1 Snow shall provide Company on request information necessary to demonstrate compliance with this Addendum and the processing of the Personal Data To the extent required under Data Protection Law, Company may additionally request, subject to the confidentiality obligations set forth in the Agreement, an on-site audit of Snow s procedures relevant to the protection of Personal Data, or if Company is not a competitor of Snow, a copy of a Subprocessor s then-current certification and audit, by notifying Snow in writing. Before the commencement of any such on-site audit, Snow and Company shall mutually agree upon the scope, timing, and duration of the audit. Company shall reimburse Snow for any time expended for any such on-site audit at Snow s then-current rates, which shall be reasonable taking into account the resources to be expended by Snow. Company shall promptly notify Snow with information regarding any noncompliance discovered during the course of an audit, and Snow shall use commercially reasonable efforts to address any confirmed non-compliance. 11. Restricted Transfers 11.1 The Standard Contractual Clauses and the terms of this Section 11 shall apply to all transfers of Personal Data under this Addendum from the European Union, the European Economic Area and/or their member states and Switzerland to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, to the extent such transfers are subject to such applicable Data Protection Laws In accordance with the Standard Contractual Clauses, the following terms apply in relation to the Standard Contractual Clauses: For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Data Exporter to process Personal Data: (a) as reasonably necessary for the provision of the Services and consistent with the Agreement; (b) processing initiated by Data Exporter s end users in their use of the Services; and (c) to comply with other reasonable instructions provided by Data Exporter via support ticket, , or otherwise where such instructions are consistent with the terms of the Agreement Pursuant to Clause 5(h) of the Standard Contractual Clauses, Data Exporter acknowledges and expressly agrees that (a) Data Importer s Affiliates may be retained as Subprocessors; and (b) Data Importer and Data Importer s Affiliates respectively may engage third-party Subprocessors in connection with the provision of the Services. Data Importer shall make available to Data Exporter the current list of Subprocessors in accordance with Section 5 of this Addendum; Pursuant to Clause 5(h) of the Standard Contractual Clauses, Data Exporter acknowledges and expressly agrees that Data Importer may engage new Subprocessors as described in Section 5 of this Addendum; The parties agree that the copies of the Subprocessor agreements that must be provided by Data Importer to Data Exporter pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by Data Importer beforehand; and, that such copies will be provided by Data Importer, in a manner to be determined in its discretion, only upon request by Data Exporter; The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with Section 10 of this Addendum; and The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Data Importer to Data Exporter only upon Data Exporter s request. 12. General Terms 12.1 Nothing in this Addendum reduces Snow s obligations under the Agreement in relation to the protection of Personal Data or permits Snow to process (or permit the processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail Any claims brought under this Addendum will be subject to the same terms and conditions, including any exclusions and limitations of liability, set out in the Agreement, except that any limitations of liability will not apply with respect to any data subject rights under the Standard Contractual Clauses. 4 of 15

5 12.3 If any provision of this Addendum is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect Notwithstanding the signatures below for each Snow Software entity, the only Snow Software entity that is a party to this Addendum and the Standard Contractual Clauses is Snow (the Snow Software entity named in the signature block of the Agreement). Where Snow is not a Snow Software entity named as a data importer in the Standard Contractual Clauses, Snow is carrying out the obligations of the data importer as set out in the Standard Contractual Clauses on behalf of the Snow Software entities named as a data importer. ENCLOSED: Exhibit A Exhibit A, Appendix 1 Exhibit A, Appendix 2 The parties' authorized signatories have duly executed this Addendum: COMPANY Company Legal Signature: Print Date Signed SNOW SOFTWARE AB SNOW SOFTWARE PTY LTD SNOW SOFTWARE BELGIUM N.V. SNOW SOFTWARE ASSESSORIA E REPRESENTAÇÕES LTDA 5 of 15

6 SNOW SOFTWARE GMBH SNOW SOFTWARE APS SNOW SOFTWARE S.L SNOW SOFTWARE OY SNOW SOFTWARE SAS SNOW SOFTWARE HONG KONG LTD SNOW SOFTWARE S.R.L A SOCIO UNICO SNOW SOFTWARE S.A. DE C.V. SNOW SOFTWARE BENELUX B.V SNOW SOFTWARE AS 6 of 15

7 SNOW SOFTWARE, INC. SNOW SOFTWARE NORDIC AB SNOW SOFTWARE LTD SNOW SOFTWARE SINGAPORE PTE.LTD. SNOW SOFTWARE SP.Z.O.O [END OF SIGNATURES] 7 of 15

8 EXHIBIT A 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: Address: Tel.: ; fax: ; Other information needed to identify the organisation: (the data exporter) And Name of the data importing organisation: Snow Software, Inc. Address: 1703 West 5 th Street, Suite 700, Austin, TX 78703, USA Tel.: ; fax: None; legal@snowsoftware.com Other information needed to identify the organisation: None Name of the data importing organisation: Snow Software Pty Ltd Address: Level 6, 50 Pitt Street, Sydney NSW 2000, Australia Tel.: +61 (0) ; fax: None; legal@snowsoftware.com Other information needed to identify the organisation: None Name of the data importing organisation: SNOW SOFTWARE ASSESSORIA E REPRESENTAÇÕES LTDA Address: R. Ministro Jesuíno Cardoso, 633 Cj. 122, São Paulo, Brazil Tel.: ; fax: None; legal@snowsoftware.com Other information needed to identify the organisation: None Name of the data importing organisation: Snow Software Hong Kong Ltd Address: Smart-Space 3F, Unit , Core F, Cyberport 3, Cyberport Road 100, Hong Kong Tel.: ; fax: None; legal@snowsoftware.com Other information needed to identify the organisation: None Name of the data importing organisation: Snow Software S.A. de C.V. Address: Laguna de Términos 221, Col. Anáhuac. Torre A. Oficina 401, Delegación Miguel Hidalgo, Ciudad de México. C.P Tel.: ; fax: None; legal@snowsoftware.com Other information needed to identify the organisation: None 8 of 15

9 Name of the data importing organisation: Snow Software Ltd Address: The Capitol Building, Oldbury, Bracknell, Berkshire RG12 8FZ, United Kingdom Tel.: +44 (0) ; fax: None; Other information needed to identify the organisation: None Name of the data importing organisation: Snow Software Singapore Pte.Ltd. Address: 111 Somerset Road, #16-06 Tripleone Somerset, Singapore Tel.: ; fax: None; Other information needed to identify the organisation: None (collectively 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. 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 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. 9 of 15

10 Clause 3 Third-party beneficiary clause 1. 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 organisational security measures specified in Appendix 2 to this contract; (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; (e) that it will ensure compliance with the security measures; (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of 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; 10 of 15

11 (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred; (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, (ii) any accidental or unauthorised access, and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; (f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority; (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent; (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11; (j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter. 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. 11 of 15

12 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 of 15

13 On behalf of the data exporter: Name (written out in full): Position: Address: Other information necessary in order for the contract to be binding (if any): Signature. On behalf of the data importer: Name (written out in full): Position: General Counsel Address: 1703 West 5 th Street, Suite 700, Austin, TX 78703, USA Other information necessary in order for the contract to be binding (if any): Not applicable Signature. 13 of 15

14 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 (please specify briefly your activities relevant to the transfer): (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and, (ii) all Affiliates (as defined in the Agreement) of company established within the European Economic Area (EEA) and Switzerland that have access to the Services. Data importer The data importer is (please specify briefly activities relevant to the transfer): Snow Software, Inc., a provider of certain software related services which may include the processing of personal data upon the instruction of the data exporter in accordance with the terms of the Agreement. Data subjects The personal data transferred concern the following categories of data subjects: may include, but is not limited to: Data exporter s end users, employees, contractors, suppliers, and vendors (who are natural persons), and other third parties. Categories of data The personal data transferred concern the following categories of data: may include, but is not limited to: name, title, localization data, ID data, address, or phone number. Special categories of data (if appropriate) The personal data transferred concern the following special categories of data: data exporter may submit special categories of data to data importer as part of the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is, for the sake of clarity, personal data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life or sexual orientation. Processing operations The personal data transferred will be subject to the following basic processing activities: The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement. DATA EXPORTER Authorised Signature DATA IMPORTER Authorised Signature 14 of 15

15 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): The data importer will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data provided to it by the data exporter in connection with the Clauses. Specifically, data importer shall implement technical and organisational security measures designed to ensure the following: 1. prevent any unauthorised person from accessing the facilities used for data processing (e.g. secured access, badges); 2. prevent data media from being read, copied, amended or moved by any unauthorised persons (e.g. data kept in locked premises); 3. prevent the unauthorised introduction of any data into the information system, as well as any unauthorised knowledge, amendment or deletion of the recorded data (e.g. restricted access to the IT infrastructure); 4. prevent data processing systems from being used by unauthorised person using data transmission facilities (e.g. firewalls); 5. guarantee that authorised persons when using an automated data processing system may access only data that are within their competence (e.g. specific users accounts); 6. guarantee the checking and recording of the identity of third parties to whom the data can be transmitted by transmission facilities (e.g. VPN, encryption of data); 7. guarantee that the identity of the persons having had access to the information system and the data introduced into the system can be checked and recorded ex post facto at any time and by any authorised person; 8. prevent data from being read, copied, amended or deleted in an unauthorised manner when data is disclosed and data media transported; 9. safeguard data by creating backup copies (encryption of data back-ups). DATA EXPORTER Authorised Signature DATA IMPORTER Authorised Signature 15 of 15