When accessing our Website, K9WellBeing.com will learn certain information about you during your visit.
Similar to other commercial Web sites, our Web site utilizes a standard technology called “cookies” (see explanation below, “What Are Cookies?”) and Web server logs to collect information about how our Web site is used. Information gathered through cookies and Web server logs may include the date and time of visits, the pages viewed, time spent at our Web site, and the Web sites visited just before and just after our Web site, your IP address.
What Are Cookies?
A cookie is a very small text document, which often includes an anonymous unique identifier. When you visit a Web site, that site’s computer asks your computer for permission to store this file in a part of your hard drive specifically designated for cookies. Each Web site can send its own cookie to your browser if your browser’s preferences allow it, but (to protect your privacy) your browser only permits a Web site to access the cookies it has already sent to you, not the cookies sent to you by other sites.
IP addresses are used by your computer every time you are connected to the Internet. Your IP address is a number that is used by computers on the network to identify your computer. IP addresses are automatically collected by our web server as part of demographic and profile data known as “traffic data” so that data (such as the Web pages you request) can be sent to you.
If you choose to correspond with us through email, we may retain the content of your email messages together with your email address and our responses. We provide the same protections for these electronic communications that we employ in the maintenance of information received online, mail and telephone.
How Do We Use the Information That You Provide to Us?
Broadly speaking, we use personal information for purposes of administering our business activities, providing customer service and making available other items and services to our customers and prospective customers.
K9WellBeing.com will not obtain personally-identifying information about you when you visit our site, unless you choose to provide such information to us. This information may be your name, email address, physical address, phone number, or payment details you use when you make a purchase.
K9WellBeing.com may share your information with third parties if deemed appropriate, but won’t ever share payment details. Items of information that may be shared are your name, email address, mailing address and phone number.
When you provide information to LevelingUpLLC.com, either through a purchase or by opting in, you are consenting to K9WellBeing.com that we may share data with third parties. Information may be shared with third party marketing companies, related to telemarketing, email, and direct mail marketing. You may opt out of this at any time by emailing unsubscribe@k9WellBeing.com and requesting a removal.
We may disclose information when legally compelled to do so, in other words, when we, in good faith, believe that the law requires it or for the protection of our legal rights.
A Special Note About Children
Children are not eligible to use our web site and services and we ask that minors (under the age of 13) do not submit any personal information to us. If you are a minor, you can use this site only in conjunction with permission and guidance from your parents or guardians.
How Do We Protect Your Information and Secure Information Transmissions?
Email is not recognized as a secure medium of communication. For this reason, we request that you do not send private information to us by email. However, doing so is allowed, but at your own risk. In the future, some of the information you may enter on our Web site may be transmitted securely via a secure medium known as Secure Sockets Layer, or SSL. Credit Card information is never transmitted via email.
K9WellBeing.com may use software programs to create summary statistics, which are used for such purposes as assessing the number of visitors to the different sections of our site, what information is of most and least interest, determining technical design specifications, and identifying system performance or problem areas.
For site security purposes and to ensure that this service remains available to all users, K9WellBeing.com uses software programs to monitor network traffic to identify unauthorized attempts to upload or change information, or otherwise cause damage.
We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.
Attention: Residents of the EU:
THIS DATA PROCESSING AGREEMENT (“DPA”) FORMS PART OF ONE OR MORE AGREEMENTS (THE “UNDERLYING AGREEMENT(S)” THAT REQUIRE K9 WELL BEING (“K9WB”) TO PROVIDE CERTAIN SERVICES TO THE CUSTOMER IDENTIFIED IN THE UNDERLYING AGREEMENT(S). IN PROVIDING THE SERVICES TO CUSTOMER PURSUANT TO THE UNDERLYING AGREEMENT(S), SAMPLECO MAY PROCESS PERSONAL DATA ON BEHALF OF CUSTOMER. IF AND TO THE EXTENT SAMPLECO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, THE PARTIES WILL BE SUBJECT TO THE GDPR AND APPLICABLE DATA PROTECTION LAWS AND REGULATIONS. IF AND TO THE EXTENT SAMPLECO PROCESSES PERSONAL DATA ON BEHALF OF CUSTOMER, CUSTOMER WILL BE ACTING IN THE CAPACITY OF CONTROLLER, AND K9WB WILL BE ACTING IN THE CAPACITY OF PROCESSOR. REFERENCES TO THE UNDERLYING AGREEMENT(S) WILL BE CONSTRUED AS INCLUDING THIS DPA.
K9WB AGREES TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
CUSTOMER INDICATES ITS AGREEMENT TO COMPLY WITH THE FOLLOWING PROVISIONS WITH RESPECT TO ANY PERSONAL DATA PROCESSED FOR BY K9WB EITHER BY (i) CUSTOMER INDICATING ITS ACCEPTANCE OF THE UNDERLYING AGREEMENT(s), OR (ii) BY ACCESSING OR USING THE SERVICES.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this DPA. “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.
1.2 “Authorized Affiliate” means any of Customer’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 DPA between Customer and K9WB, but has not signed its own agreement or order form with K9WB and is not a “Customer” as defined under this DPA.
1.3 “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
1.4 “Customer Data” means all electronic data submitted by or on behalf of Customer, or an Authorized Affiliate, to K9WB’s Services.
1.5 “DPA” means these terms and conditions including Attachment 1 to Exhibit attached (Standard Contractual Clauses including related Appendices).
1.6 “Data Protection Laws and Regulations” means all applicable laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under this DPA, including without limitation the GDPR and laws implementing or supplementing the GDPR.
1.7 “Data Subject” means the identified or identifiable person to whom Personal Data relates.
1.8 “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).
1.9 “Personal Data” means any Customer Data relating to (i) an identified or identifiable natural person, and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations).
1.10 “Processing” and “Process” mean any operation or set of operations which 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.
1.11 “Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.12 “Trust & Compliance Documentation” means the documentation regarding privacy, data security, and Sub-processor information applicable to the specific Services purchased by Customer, as may be updated periodically, and accessible via K9WB’s website at http://www.k9WellBeing.com/trust&compliance.com , or as otherwise made reasonably available by K9WB.
1.13 “Services” means downloadable PDFs and/or videos from K9WB for information and educational purposes.
1.14 “Standard Contractual Clauses” means the agreement executed by and between Customer and K9WB and attached as Attachment 1 to Exhibit A, pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.15 “Sub-processor” means any Processor engaged by K9WB.
1.16 “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
- Services. K9WB provides the Services to Customer under the Underlying Agreement(s). In connection with the Services, the parties anticipate that K9WB may Process Customer Data that contains Personal Data relating to Data Subjects.
- Designation of Controller and Processor. The parties agree that with regard to the Processing of Personal Data, Customer is the Controller, K9WB is the Processor, and that K9WB will engage Sub-processors pursuant to the requirements of this DPA.
4.1 K9WB will Process Personal Data in accordance with the Data Protection Laws and Regulations that are directly applicable to K9WB’s provision of the Services.
4.2 Customer shall in its use of the Services, Process Personal Data in accordance with the Data Protection Laws and Regulations. Customer’s instructions to K9WB for the Processing of Personal Data shall comply with Data Protection Laws and Regulations; provided, however, that as of the Effective Date hereof, Customer’s initial and complete instructions to K9WB for the Processing of Personal Data are provided to K9WB in the Underlying Agreement(s). Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
- Processing Purposes; Confidentiality. K9WB shall keep Personal Data confidential in accordance with the Underlying Agreement(s) and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented, reasonable instructions provided by Customer (for example, via email) where such instructions are consistent with the terms of the Underlying Agreement. K9WB shall not be required to comply with or observe Customer’s instructions if such instructions would violate the applicable Data Protection Laws and Regulations.
- Scope of Processing. The subject-matter and scope of Processing of Personal Data by K9WB is limited to the performance of the Services pursuant to the Underlying Agreement(s). The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Appendix 1 to Attachment 1 (Exhibit A) to this DPA.
- Data Subject Requests. To the extent legally permitted, K9WB shall promptly notify Customer if K9WB receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Factoring into account the nature of the Processing, K9WB shall assist Customer by appropriate organizational and technical measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, K9WB shall, upon Customer’s request, provide commercially-reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent that K9WB is legally authorized to do so, and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from K9WB provision of such assistance.
- K9WB Personnel. K9WB shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities, and have executed written confidentiality agreements. K9WB shall take commercially-reasonable steps to ensure the reliability of any K9WB personnel engaged in the Processing of Personal Data. SampleCo shall ensure that K9WB access to Personal Data is limited to those personnel assisting in the provision of the Services in accordance with the Underlying Agreement(s).
- Data Protection Officer. K9WB shall have appointed, or shall appoint, a data protection officer, provided that such appointment is required by Data Protection Laws and Regulations.
- K9WB’s Sub-processors.
10.1 Customer acknowledges and agrees that K9WB may engage third-party Sub-processors in connection with the provision of the Services. K9WB agrees to publish a current list of Sub-processors via K9WB applicable Trust & Compliance Documentation. K9WB agrees to promptly notify Customer regarding K9WB appointment of any new third-party Sub-processor.
10.2 In order to exercise its right to object to K9WB use of a new Sub-processor, Customer shall notify K9WB promptly in writing within ten (10) business days after receipt of K9WB’S notice regarding the appointment of each third-party Sub-processor. In the event Customer objects to a new Sub-processor, and that objection is not unreasonable, K9WB will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially-reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If K9WB is unable to make available such change within a reasonable time period, which shall in no event exceed thirty (30) days, Customer may terminate the applicable order form(s) with respect only to those aspects of the Services which cannot be provided by K9WB without the use of the objected-to new Sub-processor by providing written notice to K9WB. K9WB will refund Customer any prepaid fees covering the remainder of the term of such order form(s) following the effective date of termination with respect to such terminated Services. If termination of applicable order form(s) is not feasible, then Customer may terminate the Underlying Agreement(s) by thirty (30) days prior written notice to K9WB.
10.3 Upon request, K9WB will provide to Customer copies of Sub-processor agreements; provided, however, that to the extent that such Sub-processor agreements contain commercial information or provisions unrelated to information required by applicable Data Protection Laws and Regulations, such unrelated information may be removed by K9WB in its discretion.
10.4 K9WB will not transfer any Personal Data to a Sub-processor which does not provide evidence of a jurisdiction, data transmission mechanism or data protection certification (such as the EU-U.S. and Swiss-U.S. Privacy Shield) which is compliant with Data Protection Laws and Regulations for the onward transfer of Personal Data from the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom
- Flow Down Provisions for Sub-processor Agreements. Liability for Sub-processors.
11.1 K9WB shall impose the same obligations of K9WB regarding GDPR hereunder to its Sub-processors.
11.2 K9WB shall be liable for the acts and omissions of its Sub-processors to the same extent K9WB would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Underlying Agreement(s).
- Security Measures. K9WB shall maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful Processing, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data), confidentiality, and integrity of Customer Data, as set forth in K9WB’S applicable Trust & Compliance Documentation. K9WB regularly monitors compliance with these measures. K9WB will not materially decrease the overall security of the Services during Customer’s and/or Customer’s Authorized Affiliates’ subscription term.
- Third-Party Certifications and Audit Results. K9WB has attained the third-party certifications and audit results set forth in the Trust & Compliance Documentation. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), K9WB shall make available to Customer a copy of K9WB’s then most recent third-party certifications or audit results, as applicable.
- Notifications Regarding Customer Data. K9WB shall (i) implement and maintain reasonable and appropriate data security and incident management policies and procedures, as specified in the Trust & Compliance Documentation, and (ii) notify Customer without undue delay after becoming aware of the unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Customer Data, including Personal Data, transmitted, stored or otherwise Processed by K9WB or its Sub-processors of which K9WB becomes aware (hereinafter, a “Customer Data Incident”), as required to assist the Customer in ensuring compliance with its obligations to notify the Supervisory Authority in the event of Personal Data breach. K9WB shall make reasonable efforts to identify the cause of such Customer Data Incident, and take those steps as K9WB deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident, to the extent that the remediation is within K9WB’s reasonable control. The obligations set forth herein shall not apply to incidents that are caused by either Customer or Customer’s Users.
- Return of Customer Data. K9WB shall return Customer Data to Customer, and to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and time periods specified in the Trust & Compliance Documentation, unless the retention of the data is requested from K9WB according to mandatory statutory laws.
- Authorized Affiliates. The parties agree that, by executing this DPA, the Customer enters into this DPA on behalf of itself, and as applicable, in the name and on behalf of its Authorized Affiliate(s), thereby establishing a separate DPA between K9WB and each such Authorized Affiliate, subject to the provisions of the Underlying Agreement(s). Each Authorized Affiliate agrees to be bound by the obligations under this DPA, and to the extent applicable, the Underlying Agreement(s). An Authorized Affiliate is not and does not become a party to the Underlying Agreement(s), and is only a party to this DPA. All access to and use of the Services by Authorized Affiliate(s) must comply with the terms and conditions of the Underlying Agreement(s) and any violation thereof by an Authorized Affiliate shall be deemed a violation by Customer.
- Communications. The Customer that is the contracting party to the Underlying Agreement(s) shall remain responsible for coordinating all communication with K9WB under this DPA, and shall be entitled to transmit and receive any communication in relation to this DPA on behalf of its Authorized Affiliate(s).
- Exercise of Rights. Where an Authorized Affiliate becomes a party to the DPA, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against K9WB directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Underlying Agreement(s) shall exercise any such rights under this DPA in a combined manner for all of its Authorized Affiliates together, instead of doing so separately for each Authorized Affiliate.
- Liability. Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs involving Customer’s Authorized Affiliates, whether in contract, tort or under any other theory of liability, is subject to the limitation of liability, damage waiver, and liability cap provisions of the Underlying Agreement(s), and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Underlying Agreement(s) and all DPAs taken together. K9WB s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Underlying Agreement(s) and each DPA shall apply in the aggregate for all claims under both the Underlying Agreement(s) and all DPAs established under this Agreement, including by Customer and all of Customer’s Authorized Affiliates, and shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Each reference to the DPA herein means this DPA including its Attachments and Appendices.
- Data Protection Impact Assessment. Upon Customer’s request, K9WB shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to K9WB. K9WB shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 21 of this DPA, to the extent required under the GDPR.
- Standard Contractual Clauses.
22.1 The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates, and (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses the aforementioned entities shall be deemed “data exporters.”
22.2 For the purposes of Clause 5 of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Underlying Agreement(s) and applicable order form(s); (b) Processing initiated by Users in their use of the Services and (c) Processing to comply with other reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Underlying Agreement(s).
22.3 The parties agree that the audits described in Clause 5 and Clause 12 of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: following Customer’s written request, and subject to the confidentiality obligations set forth in the Underlying Agreement(s), K9WB shall make available to Customer information regarding the K9WB’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Trust & Compliance Documentation, to the extent that K9WB makes them generally available to its customers.
22.4 The parties agree that the certification of deletion of Personal Data that is described in Clause 12 of the Standard Contractual Clauses shall be provided by K9WB to Customer only upon Customer’s request.
- Audits. Customer may contact K9WB in accordance with the “Notices” Section of the Underlying Agreement(s) to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse K9WB for any time expended for any such on-site audit at the K9WB then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and K9WB shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by K9WB. Customer shall promptly notify K9WB and provide information about any actual or suspected non-compliance discovered during an audit. The provision in this section shall by no means derogate from or materially alter the provisions on audits as specified in the Standard Contractual Clauses.
- Assignment. This DPA shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either party, whether by merger, sale of assets, or other agreements or operation of law.
- Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, terrorism, acts of God, epidemic, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or complete or partial failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
- Order of Precedence.
26.1 With respect to the rights and obligation of the parties vis-à-vis each other, in the event of a conflict between the terms of the Underlying Agreement(s) and this DPA, the terms of this DPA will control.
26.2 In the event of a of a conflict between the terms of this DPA and the Standard Contractual Clauses, the terms of the Standard Contractual Clauses will control.
- Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
ATTACHMENT 1 TO EXHIBIT A
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organization: the name and contact information given in connection with the K9WB Agreement (the data exporter),
Name of the data importing organization: K9WB, LLC, a ___________ limited liability company located at 1 Peachtree St. NE, Suite 1, Atlanta, GA 303o3 (“K9WB “) (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 this Attachment 1.
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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
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.
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 organizational 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, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
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).
Obligations of the data importer
The data importer agrees and warrants:
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;
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 organizational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:
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,
any accidental or unauthorized access, and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.
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.
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.
Mediation and jurisdiction
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:
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.
Cooperation with supervisory authorities
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
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 Clauses1. 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.
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.
Obligation after the termination of personal data processing services
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.
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.
APPENDIX 1 TO ATTACHMENT 1 (EXHIBIT A)
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.
The data exporter is: (i) the legal entity that has executed the Standard Contractual Clauses as the Data Exporter, and (ii) all Affiliates (defined in this DPA) of the Customer that have purchased Services pursuant to the Underlying Agreement(s).
The data importer is: K9WB provider of the Services to the data exporter and which processes Personal Data upon the instruction of the data exporter and in accordance with the Underlying Agreement(s) and this DPA.
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: data exporter’s employees, agents, advisors, contractors, or any user or administrator authorized by the data exporter to use the Services (who are natural persons).
Categories of data
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
First and last name
Special categories of data (if appropriate)
The Personal Data transferred concern the following special categories of data: not applicable
The Personal Data transferred will be subject to the following basic processing activities: the objective of Processing Personal Data by the data importer is the performance of the Services pursuant to the Underlying Agreements(s).
APPENDIX 2 TO ATTACHMENT 1 (EXHIBIT A)
This Appendix forms part of the Clauses and must be completed and signed by the parties.
- Technical and Organizational Security Measures
K9WB shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including Personal Data, as set forth in the Trust & Compliance Documentation. K9WB regularly monitors compliance with these safeguards. K9WB will not materially decrease the overall security of the Services during a subscription term.
APPENDIX 3 TO ATTACHMENT 1 (EXHIBIT A)
THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties. The list of subprocessors approved by the data importer as of the effective date of the DPA is as set forth below: