GDPR Data Processing Addendum
This document was last updated on April 14, 2021
This General Data Processing Addendum («GDPA») located at coolorca.com/gdpr-dpa-notice
Unless defined in this GDPA, all capitalized terms used herein shall have the meaning given to them in the Agreement. In the event of any conflict between the Agreement and this GDPA, the terms of this GDPA shall prevail in relation to the Processing of Personal Data set out in this GDPA.
Customer enters into this GDPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent Company Processes Personal Data for which such Authorized Affiliates qualify as the Controller.
For the purposes of this GDPA only, and except where indicated otherwise, the term "Customer" shall include Customer and its Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
DATA PROCESSING TERMS
In this GDPA, the following definitions apply:
«Affiliate» means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
«Authorized Affiliate(s)» means any of Customer's Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations and (b) is permitted to use the Services pursuant to the Agreement, but has not signed its own order form with Company and is not a "Customer" as defined under the Agreement.
«Controller» means the entity which determines the purposes and means of the Processing of Personal Data.
«Customer Data» means electronic data and information submitted by Customer in connection with the use of the Services.
«Data Protection Laws and Regulations» means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including without limitation 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 (“General Data Protection Regulation” or “GDPR”) and EU Directive 2002/58/EC on Privacy and Electronic Communications (“e-Privacy Directive”) or, the superseding Regulation on Privacy and Electronic Communications (“e-Privacy Regulation”), once effective.
«Data Subject» means the identified or identifiable natural person, as defined under Data Protection Laws and Regulations, who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
«Personal Data» means any information relating to a Data Subject that is Processed by Company on behalf of Customer pursuant to the terms of the Agreement.
«Personal Data Breach» means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by Company.
«Process», «Processes», «Processed» or «Processing» means 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.
«Processor» means the entity which Processes Personal Data on behalf of the Controller.
«Sub-processor» means any Processor engaged by Company, or a group of its companies, in the provision of the Services to Customer.
«Supervisory Authority» means an independent public authority, which is established by an EU Member State pursuant to the GDPR.
«Standard Contractual Clauses» means Schedule 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
2. DATA PROCESSING
2.1 Roles of the Parties.
This GDPA applies when Customer Data is processed by Coolorca. In this
context, Coolorca will act a Processor to Customer who may act either as “Controller” or “Processor” with respect to Customer Data (as each term is defined in the GDPR).
The parties acknowledge and agree that, with regard to the Processing of Personal Data, Customer is the Controller and appoints Company as the Processor and that Company or its Affiliates may engage Sub-processors pursuant to the requirements set forth in Section 6 (“Sub-processors”) below.
2.2 Customer’s Processing of Personal Data.
Customer shall, in its use of the Services, Process Personal Data in accordance
with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of Coolorca as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
2.3 Company’s Processing of Personal Data.
Coolorca shall process Customer Data only for the purposes described in this GDPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this GDPA and the Agreement set out the Customer’s complete and final instructions to Coolorca in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and Coolorca.
2.4 Details of the Processing.
- Subject matter. The subject matter of the data processing under this GDPA is Customer Data;
- Duration. As between Coolorca and Customer, the duration of the data processing under this GDPA is determined by Customer;
- Purpose. The purpose of the data processing under this GDPA is the provision of the Services initiated by Customer from time to time;
- Nature of the processing: Compute, storage and such other Services as described in the Documentation and initiated by Customer from time to time;
- Type of Customer Data: Customer Data uploaded to the Services under Customer’s Coolorca accounts;
- Categories of data subjects: The data subjects may include Customer’s customers, employees, suppliers and end-users;
- Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this GDPA, including the GDPR.
2.5 Cross-Border Transfers.
Customer may specify the location(s) where Customer Data will be processed
within the Coolorca Network, including the EU (Dublin) Region, the EU (Frankfurt) Region, the EU (London) Region and the EU (Paris) Region (each a “Region”). Once Customer has made its choice, Coolorca will not transfer Customer Data from Customer’s selected Region(s) except as necessary to provide the Services initiated by Customer, or as necessary to comply with the law or binding order of a governmental body. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses.
The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly
or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if Coolorca has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
3. NOTICES AND CONSENTS
3.1 General: Customer shall comply with all applicable Data Protection Laws and Regulations, including: (a) providing all required notices and appropriate disclosures to all Data Subjects regarding Customer’s, and Company’s, Processing and transfer of Personal Data; and (b) obtaining all necessary rights and valid consents from Data Subjects to permit Processing by Company for the purposes of fulfilling Company’s obligations, or as otherwise permitted, under the Agreement.
3.2 Children; Sensitive Data:
Customer is responsible for compliance with all applicable Data Protection Laws and Regulations regarding its content, including without limitation those that regulate content directed toward children (as defined under applicable Data Protection Laws and Regulations; for example, under 13 years old in the United States or under 16 years old in certain other countries). Customer’s use of Company Services in connection with the distribution of content and/or Processing of sensitive Personal Data of a Data Subject (such as racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, or an individual’s genetic data, biometric data, health data, or data regarding sex life or sexual orientation) must be in compliance with all applicable Data Protection Laws and Regulations, including obtaining express consent from Data Subjects whose Personal Data is provided to Company for Processing.
4. RIGHTS OF DATA SUBJECTS
Taking into account the nature of the Services, Coolorca offers Customer certain controls as described below, that Customer may elect to use to comply with its obligations towards data subjects. Should a data subject contact Coolorca with regard to correction or deletion of its personal data, Coolorca will use commercially reasonable efforts to forward such requests to Customer.
4.1. Customer Controls. The Services provide Customer with a number of controls, including security features and functionalities, that Customer may use to retrieve, correct, delete or restrict Customer Data as described in the Documentation. Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects;
4.2. Customer may elect to implement technical and organizational measures in relation to Customer Data. Such technical and organizational measures include the following which may be obtained by Customer from Coolorca as described in the Documentation, or directly from a third party supplier:
- pseudonymisation and encryption to ensure an appropriate level of security;
- measures to ensure the ongoing confidentiality, integrity, availability and resilience of the processing systems and services that are being operated by
- measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident;
- processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Customer.
5. COMPANY PERSONNEL
5.1 Confidentiality. Company 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 on their responsibilities and have executed written confidentiality agreements. Company shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
5.2 Reliability. Company shall take commercially reasonable steps to ensure the reliability of any Company personnel engaged in the Processing of Personal Data.
5.3 Limitation of Access. Company shall ensure that Company’s access to Personal Data is limited to those personnel, including Sub-processors, providing Services in accordance with the Agreement. Company only grants its employees and Sub-processors access to the Personal Data insofar as this is required for the performance of the Agreement and with due observance of the confidentiality provisions.
6.1. Authorized Sub-processors.
Customer agrees that Coolorca may use sub-processors to fulfill its contractual obligations under this GDPA or to provide certain services on its behalf, such as providing support services.
In this GDPA lists sub-processors that are currently engaged by Coolorca to carry out processing activities on Customer Data on behalf of Customer (Appendix 3), If Customer objects to a new sub-processor, then without prejudice to any termination rights Customer has under the Agreement and subject to the applicable terms and conditions, Customer may move the relevant Customer Data to another Coolorca Region where the new sub-processor to whom Customer objects, is not engaged by Coolorca as a sub-processor. Customer consents to Coolorca’s use of sub-processors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorize, Coolorca will not permit any sub-processor to carry out processing activities on Customer Data on behalf of Customer.
6.2. Sub-processor Obligations. Where Coolorca authorizes any sub-processor as described in Section 6.1:
- Coolorca will restrict the sub-processor’s access to Customer Data only to what is
necessary to maintain the Services or to provide the Services to Customer and
any End Users in accordance with the Documentation and Coolorca will prohibit the sub-processor from accessing Customer Data for any other purpose;
- Coolorca will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by Coolorca under this GDPA, Coolorca will impose on the sub-processor the same contractual obligations that Coolorca has under this GDPA;
- Coolorca will remain responsible for its compliance with the obligations of this GDPA and for any acts or omissions of the sub-processors that cause Coolorca to breach any of Coolorca’s obligations under this GDPA.
7.1 Controls for the Protection of Customer Data. Coolorca shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data. Company regularly monitors compliance with these measures.
7.2 Third-Party Certifications and Audits. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Company shall make available to Customer that is not a competitor of Company (or Customer’s independent, third-party auditor that is not a competitor of Company) a copy of Company’s then most recent third-party audits or certifications, as applicable.
7.3. Data Protection Impact Assessment. Upon Customer’s request, Coolorca shall provide Customer with reasonable cooperation
and assistance needed to fulfil Customer’s obligation under the Data Protection Laws and Regulations 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 Coolorca.
8. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION.
Company shall maintain security incident management policies and procedures and shall, notify Customer without undue delay after becoming aware of any Personal Data Breach. Coolorca shall make reasonable efforts to identify the cause of such Personal Data Breach and take those steps as Company deems necessary and commercially reasonable in order to remediate the cause of such a Personal Data Breach to the extent the remediation is within Company’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s end users.
Customer agrees that:
- an unsuccessful Security Incident will not be subject to this Section 8. An unsuccessful Security Incident is one that results in no unauthorized access to
Customer Data or to any of Coolorca’s equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on
firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of
service attacks, packet sniffing (or other unauthorized access to traffic data that
does not result in access beyond headers) or similar incidents;
- Coolorca’s obligation to report or respond to a Security Incident under this Section 8 is not and will not be construed as an acknowledgement by Coolorca of any fault or liability of Coolorca with respect to the Security Incident.
9. RETURN AND DELETION OF CUSTOMER DATA.
Upon termination or expiration of the Agreement or at any time at Customer’s written request, Company shall: return to Customer or destroy all Personal Data, except as otherwise permitted by applicable Data Protection Laws and Regulations.
The Services provide Customer with controls that
Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this GDPA. For 90 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or
regulatory body or it could subject Coolorca or its Affiliates to liability. No later than the end of this 90 day period, Customer will close all Coolorca accounts. Coolorca will delete Customer Data when requested by Customer by using the Service controls provided for this purpose by Coolorca.
10. LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this GDPA, and all GDPAs between Authorized Affiliates and Coolorca, whether in contract, tort or under any other theory of liability, is subject to the «Limitation of Liability» section of the Agreement, 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 Agreement and all GDPAs together.
For the avoidance of doubt, Coolorca’s and its Affiliates’ total liability for all claims from Customer and all of its Authorized Affiliates arising out of or related to the Agreement and all GDPAs shall apply in the aggregate for all claims under both the Agreement and all GDPAs established under the Agreement, including by Customer and all Authorized Affiliates, and, in particular, 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 GDPA.
11. EUROPEAN SPECIFIC PROVISIONS
Upon Customer’s request, Company 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 Company. Coolorca shall provide commercially reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 2.5 of this GDPA, to the extent required under the GDPR.
SCHEDULE 1 - DETAILS OF THE PROCESSING
NATURE AND PURPOSE OF PROCESSING.
Company will Process Personal Data as necessary to perform the Subscription Services pursuant to the
Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of
the Subscription Services.
DURATION OF PROCESSING.
Subject to Section 9 of the GDPA, Company will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
CATEGORIES OF DATA SUBJECTS.
Customer may submit Personal Data to the Services, the extent of which is determined and
controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data
relating to the following categories of data subjects:
● Prospects, customers, business partners and vendors of Customer (who are natural persons)
● Employees or contact persons of Customer’s prospects, customers, business partners and vendors
● Employees, agents, advisors, freelancers of Customer (who are natural persons)
● Customer’s Users authorized by Customer to use the Services.
TYPE OF PERSONAL DATA.
Customer may submit Personal Data to the Services, the extent of which is determined and
controlled by Customer in its sole discretion, and which may include, but is not limited to the following
categories of Personal Data:
● First and last name
● Contact information (company, email, phone, physical business address)
● ID data
● Professional life data
● Personal life data
● Connection data
● Localization data
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.
The entity identified as “Customer” in the GDPA (the “data exporter”) and Coolorca.com, Inc. 30 N.Gould St. Ste.R, Sheridan, WY 82801,USA. (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.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter.
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
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.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction.
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities.
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
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.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services.
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
The data exporter is the entity identified as “Customer” in the GDPA.
The data importer is Coolorca.com, Inc., a provider of web services.
Data subjects are defined in Section 2.4 of the GDPA.
Categories of data.
The personal data is defined in Section 2.4 of the GDPA.
The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 2.4 of the GDPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) or document/legislation attached.
The technical and organizational security measures implemented by the data importer are as described in the GDPA.
Coolorca may engage the following entities to carry out specific processing activities on behalf of the customer or data center facility management activities.
Affiliate Entity Location
LLC FOXNETSTORE (USA)
COOLORCA LTD (United Kingdom)
We reserve the right to modify this List from time to time in our discretion you should check our website frequently to see recent changes.