Legal   /   Data Protection Addendum

Data Protection Addendum

DATA PROTECTION ADDENDUM

1.           Introduction

This Data Protection Addendum (“Addendum”) is entered into by and between Segment.io, Inc., a Delaware corporation (“Segment”), and Customer.. This Addendum applies to Segment’s Processing of Customer Personal Data under the agreement executed between Segment and Customer for Segment’s provision of the Services (the “Agreement”).

2.           Definitions

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

a.  “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.

b.  “CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.

c.  “Customer Personal Data” means any Customer Data (as defined in the Agreement) that is Personal Data. For purposes of this Addendum, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom Segment has a direct business relationship.

d.  “Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data, including, where applicable, EU Data Protection Law and the CCPA. 

e.  “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.

f.   “EU Data Protection Law” means European Union Regulation 2016/679 (“GDPR”) and any national legislation implementing GDPR, as amended from time to time. 

g.  “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated 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.

h.  “Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Data Protection Laws.

i.   “Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data being Processed by Segment. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.

j.   “Subprocessor” means any third party authorized by Segment or its Affiliates to Process any Customer Personal Data.

k.  “Third Party Subprocessor” means any Subprocessor who is not an Affiliate of Segment

l.   “UK Privacy Law” means any and all applicable privacy and data protection laws of the United Kingdom that apply following the withdrawal of the United Kingdom from the EU, as may be amended or superseded from time to time.

3.           General; Termination

a.  This Addendum forms part of the Agreement and except as expressly set forth in this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum shall govern.

b.  Any liabilities arising under this Addendum are subject to the limitations of liability in the Agreement.  

c.  This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

d.  This Addendum will automatically terminate upon expiration or termination of the Agreement. 

4.           Scope of this Addendum

This Addendum applies to Segment’s Processing of Customer Personal Data under the Agreement, except that Annex A (EU Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by the CCPA. 

5.           Role and Scope of the Processing

a.  Segment will Process Customer Data only in accordance with Customer’s instructions. By entering into the Agreement, Customer instructs Segment to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by Segment as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes Segment to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.

b.  For clarity, nothing in this Addendum limits Segment from transmitting Customer Data to and among Sources and Destinations as directed by Customer through the Services. The parties agree that neither Sources nor Destinations are Subprocessors of Segment and that, between the parties, Customer is solely responsible for the Processing of Customer Personal Data by, and other acts and omissions of, Sources and Destinations or parties associated therewith.

6.           Subprocessing

a.  Customer specifically authorizes Segment to use its Affiliates as Subprocessors, and generally authorizes Segment to engage Third Party Subprocessors to Process Customer Personal Data. Segment:

(i)     shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and

(ii)    remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause Segment to breach any of its obligations under this Addendum. 

b.  A list of Segment’s Subprocessors, including their functions and locations, is available at https://segment.com/docs/legal/subprocessors/ or such other website as Segment may designate (“Subprocessor Page”), and may be updated by Segment from time to time in accordance with this Addendum.

c.  When any new Third Party Subprocessor is engaged, Segment will notify Customer of the engagement, which notice may be given by updating the Subprocessor Page and via a message through Customer’s Segment Workspace. Segment will give such notice at least ten (10) calendar days before the new Subprocessor Processes any Customer Personal Data, except that if Segment reasonably believes engaging a new Subprocessor on an expedited basis is necessary to protect the confidentiality, integrity or availability of the Customer Personal Data or avoid material disruption to the Services, Segment will give such notice as soon as reasonably practicable. If, within five (5) calendar days after such notice, Customer notifies Segment in writing that Customer objects to Segment’s appointment of a new Third Party Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith and whether they can be resolved. If the parties are not able to mutually agree to a resolution of such concerns, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience.

7.           Security

a.  Segment shall implement and maintain technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with Segment’s security standards referenced in the Agreement (“Security Measures”).

b.  Customer is responsible for reviewing the information made available by Segment relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Segment’s obligations as compared to those reflected in such terms as of the Effective Date).

c.  Upon becoming aware of a confirmed Security Incident, Segment shall notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of Segment’s legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps Segment recommends Customer take to address the Security Incident. Without prejudice to Segment’s obligations under this Section 7.c., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. Segment’s notification of or response to a Security Incident under this Section 7.c. will not be construed as an acknowledgement by Segment of any fault or liability with respect to the Security Incident.

d.  Customer agrees that, without limitation of Segment’s obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.

8.           Data Subject Requests

Segment shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If Segment receives a request from a Data Subject in relation to their Customer Personal Data, Segment will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.

9.           Return or Deletion of Data

a.  Segment shall, within sixty (60) days after request by Customer following the termination or expiration of the Agreement, delete all of the Customer Personal Data from Segment’s systems. 

b.  Notwithstanding the foregoing, Customer understands that Segment may retain Customer Personal Data if required by law, which data will remain subject to the requirements of this Addendum.

Annex A – EU Annex

1.           Definitions; Processing of Data

a.  Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Segment Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.

b.  Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Segment’s provision of the Services; (b) the duration of the Processing is from Segment’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Segment in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the Agreement. 

c.  Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (a) Segment is a processor of the Customer Personal Data under EU Data Protection Law; (b) Customer is a controller of the Customer Personal Data under EU Data Protection Law; and (c) each party will comply with the obligations applicable to it in such role under EU Data Protection Law with respect to the Processing of Customer Personal Data. To the extent that any Usage Data (as defined in the Agreement) is considered Personal Data, Segment is the controller with respect to such data and shall Process such data in accordance with its Privacy Policy, which can be found at segment.com/docs/legal/privacy.

d.  Segment’s Compliance with Instructions. Segment will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case Segment will notify Customer (unless that law prohibits Segment from doing so).

2.           Data Security

a.  Segment Security Measures, Controls and Assistance

(i)     Segment will (taking into account the nature of the Processing of Customer Personal Data and the information available to Segment) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.

(ii)    Segment will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Segment without delay and instruct their employee to contact Segment directly via privacy@segment.com or such other email address as directed at the time.

b.  Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Segment’s Processing of Customer Personal Data, Customer will exercise such audit right, and Segment will fulfill its corresponding obligations, as follows:

(i)     Segment shall make available to Customer relevant information regarding Segment’s Processing of Customer Personal Data under this Addendum in the form of Segment’s most recent ISO 27001, ISO 27017 or ISO 27018 certifications or similar audit reports (“Third Party Reports”).

(ii)    Not more than once per calendar year and at Customer’s expense, Customer may audit Segment’s Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. Segment will provide written responses to the extent the requested information is necessary to confirm Segment’s compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Segment confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Segment under this Section 2.b. constitutes Segment’s Confidential Information under the Agreement.

(iii)   If a third party is to conduct an audit under this Section 2.b., Segment may object to the auditor if the auditor is, in Segment’s reasonable opinion, not independent, a competitor of Segment or otherwise unqualified. Such objection by Segment will require Customer to appoint another auditor or conduct the audit itself.

(iv)   Customer will promptly notify Segment of any non-compliance discovered during the course of an audit and provide Segment any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law 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 confirming that Segment’s Processing of Customer Personal Data complies with this Addendum.

(v)    Customer shall reimburse Segment for any time expended by Segment or its Subprocessors in connection with any audits under this Section 2.b. at Segment’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. Nothing in this Addendum shall be construed to require Segment to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require Segment to breach any duties of confidentiality.

3.           Impact Assessments and Consultations

Segment may (taking into account the nature of the Processing and the information available to Segment) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Segment’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.

4.           Data Transfers

a.  Data Processing Facilities. Segment may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Segment or its Subprocessors maintain facilities. Subject to Segment’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.

b.  If and from such date that GDPR  ceases to apply to the United Kingdom following the United Kingdom's withdrawal from the European Union, then to the extent that any Customer Data subject to UK Privacy Law is Processed (or caused to be Processed) outside of the EEA and the United Kingdom, then the provisions at Clause 4. (c) above shall apply to such Personal Data in the same way as if the United Kingdom was deemed to be a part of the EEA

c.  Standard Contractual Clauses. If Customer is established in the EU and transfers Customer Personal Data out of the EU to Segment in a country not deemed by the European Commission to have adequate data protection such transfer will be governed by the Standard Contractual Clauses, set out at Annex C. In furtherance of the foregoing, the parties agree that

(i)     for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Segment will act as the data importer;

(ii)    for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;

(iii)   for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;

(iv)   upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;

(v)    the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;

(vi)   Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Segment of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;

(vii)  certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and

(viii) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.

Annex B - California Annex

1.           For purposes of this Annex B, the terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA. 

2.           With respect to Customer Personal Data, Segment is a service provider under the CCPA.

3.           Segment will not (a) sell Customer Personal Data; (b) retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Segment and Customer.

4.           The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 5 of this Addendum is integral to and encompassed by Segment’s provision of the Services and the direct business relationship between the parties.

5.           Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that Segment’s access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.

6.           To the extent that any Usage Data (as defined in the Agreement) is considered Personal Data, Segment is the business with respect to such data and shall Process such data in accordance with its Privacy Policy, which can be found at segment.com/docs/legal/privacy.

Annex C

STANDARD CONTRACTUAL CLAUSES

Introduction

The following Standard Contractual Clauses (“Clauses”) are a legal contract entered into between Segment and the executing non-Segment entity that allow for a valid mechanism to transfer EU personal data outside of the EU.

How these Clauses Apply

These Clauses, including any Appendices, are effective from the date the non-Segment entity has: (i) executed or agreed to a valid Segment Online Customer Agreement or Segment Master Subscription Agreement; and (ii) (a) executed or clicked to accept a valid Data Protection Addendum or Data Processing Addendum that expressly incorporates these Clauses by reference; or, (b) executed or clicked to accept a valid Data Protection Addendum or Data Processing Addendum and executed or clicked to accept these Clauses.

Additional Definitions

“Segment Online Customer Agreement” means the Segment Online Customer Agreement entered into with Segment.io Inc.

“Segment Master Subscription Agreement” means a Segment Master Subscription Agreement entered into with Segment.io Inc.

“Data Protection Addendum” or “Data Processing Addendum” means terms agreed between the parties that set forth certain terms in relation to the protection and processing of personal data.

If you are accepting on behalf of the data exporter, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand the Clauses; and (iii) you agree, on behalf of the party that you represent, to the Clauses. If you do not have the legal authority to bind the data exporter, please do not click the “I Accept” button below. The Clauses shall automatically expire on the termination or expiry of the Data Protection Addendum. The parties agree that where data exporter has been presented with these Clauses and clicked to accept these terms electronically, such acceptance shall constitute execution of the entirety of the Clauses (including Appendices 1, 2, and 3) by both parties, subject to the effective date described above.

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:

the legal entity defined as 'Data Controller' or 'Customer' in the Data Processing Addendum entered into between the parties and to which these Clauses are appended.

(the data exporter)

And

Name of the data importing organisation: Segment.io. Inc.

the legal entity defined as 'Data Processor' or 'Segment' in the Data Processing Addendum entered into between the parties and to which these Clauses are appended.

 (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.

1.             Definitions

For the purposes of the Clauses:

'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;

'the data exporter' means the controller who transfers the personal data;

'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on 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;

'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;

'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;

'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.

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.

3.             Third-party beneficiary clause

3.1           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.

3.2           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.

3.3           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.

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

4.             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).

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 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.

6.             Liability

6.1           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.

6.2           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.

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

6.4           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.

7.             Mediation and jurisdiction

7.1           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.

7.2           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.

8.             Cooperation with supervisory authorities

8.1           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.

8.2           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.

8.3           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).

9.             Governing Law

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

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.

11.          Subprocessing

11.1        The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the 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.

11.2        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.

11.3        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.

11.4        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.

12.          Obligation after the termination of personal data processing services

12.1        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.

12.2        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.

 

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: 

Address:  100 California Street, Suite 700, San Francisco, CA 94111 USA

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed by the parties.

The details of the processing are described in the Data Protection Addendum to which these Clauses are appended.

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed by the parties.

The security measures are described in the applicable Segment Online Customer Agreement or Segment Master Subscription Agreement entered into between the parties.