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Data Processing Agreement

This Data Processing Agreement (“DPA”) supplements the Terms of Use, which are updated from time to time between you (together with subsidiaries and affiliates, collectively, “Customer”) and eSputnik (together with its subsidiary(s), jointly referred to as “eSputnik”) when the GDPR applies to Customer’s use of the eSputnik Services to process Customer data.

This DPA is effective from the date the Customer agrees to the Terms of Use. In any conflict between this DPA and the Terms of Use, the relevant terms of this DPA take precedence.

THIS AGREEMENT IS ENTERED BETWEEN:

1. Customer

AND

2. RETENTION YES SP. Z.O.O, Warsaw city, Poland, duly represented by Oleksii Danchenko with due power and authority for the purposes hereof, having its principal office Poland, 02-972, voivodeship Mazovetsky, Warsaw city, Adama Branickiego Street, No. 21, office U3

IT IS HEREBY AGREED AS FOLLOWS:

  1. Scope and order of precedence

This agreement (the “Data Processing Agreement”) applies to Your Processing of Personal Data provided to You by Customer, as further specified in the agreement executed between You and Customer dated Customer (the “Agreement”).

This Data Processing Agreement is subject to the terms of the Agreement and is incorporated into the Agreement. Except as otherwise stated in this Data Processing Agreement, in the event of any conflict between the terms of the Agreement and the terms of this Data Processing Agreement, the relevant terms of this Data Processing Agreement shall take precedence.

  1. Definitions

Capitalized terms not otherwise defined in this Data Processing Agreement will have the respective meanings assigned to them in the Agreement.

“Customer” or “Controller” means Customer

The “Directive” means Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995, as amended, on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data.

“Model Clauses” means the standard contractual clauses annexed to the EU Commission Decision 2021/914/EU of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (transfers from the controller to processor), as may be amended, superseded or replaced from time to time.

“Personal Data” means any information relating to an identified or identifiable natural person that (i)Customer or any person acting on Customer’s behalf provides to You or (ii) You Process as part of the services provided under the Agreement. An identified or identifiable natural person (a “Data Subject”) is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Process” or “Processing” means any operation or set of operations which is performed by You as part of the Agreement 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” or “You” means the entity mentioned above.

“Subprocessor” means a third-party subcontractor engaged by You which, as part of the subcontractor’s role of delivering the services under the Agreement, will Process Personal Data belonging to Customer.

The “Regulation” means Regulation 2016/679 of the European Parliament and of the Council of April 27, 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.

Other terms have the definitions provided for them in the Agreement or as otherwise specified below.

  1. Categories of Personal Data and purpose of the Personal Data Processing

The types of Company Personal Data to be Processed:

A. Customer and Users: identification and contact data (name, address, title, contact details, username); financial information ( account details, payment information); employment details (employer, job title, geographic location, area of responsibility);

B. Subscribers: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, including email address), personal interests or preferences (including purchase history, marketing preferences); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data).

Processing of special categories of personal data is forbidden.

The data is transferred on a continuous basis.

Processing the data consists of the following: collecting, sorting, saving, transferring, restricting, and deleting of controller’s data to provide relevant marketing communications.

The purpose of the processing is to assist the controller to provide relevant marketing communications.

The personal data will be processed and retained for as long as the execution of the Agreement is needed and shall be removed upon the controller’s request and in accordance with the controller’s instructions.

  1. Controller’s Instructions

During the term of the Agreement, Customer may provide instructions to You in addition to those specified in the Agreement with regards to the processing of Personal Data. You will comply with all such instructions without additional charge to the extent necessary for You to comply with laws applicable to You as a data processor in the performance of the Agreement.

You shall immediately inform Customer if, in Your opinion, an instruction infringes the Directive, the Regulation, or other applicable data protection and or privacy provisions.

The control of Personal Data remains with Customer, and as between Customer and You, Customer will at all times remain the data controller for the purposes of the Agreement and this Data Processing Agreement. Customer is responsible for compliance with its obligations as a data controller under data protection laws, in particular for its decisions and actions concerning the Processing and use of the data.

  1. Rights of Data Subject

You undertake to assist Customer in responding to the requests of data subjects exercising their rights to access, to rectify, to erase, to restrict, to data portability, or to object.

In particular, upon Customer’s instructions, You will delete, release, correct or restrict access to any specific Personal Data and undertake to pass on promptly to Customer any requests of an individual data subject to access, to rectify, to erase, to restrict or to object Personal Data Processed under the Agreement.

  1. Processor’s Obligations

In addition to other provisions of this Data Processing Agreement, You undertake to:

  1. appoint a data protection officer, where required by applicable law, and to supply Customer with his/her contact details;
  2. ensure that all persons who have access to Personal Data belonging to Customer under the terms of the Agreement and Data Processing Agreement undertake to maintain confidentiality and have signed agreements with You containing protections no less stringent than those herein and will be informed by You of any data protection requirements related to the Processing of the Personal Data, including the limitation of use to the specific purpose of the Agreement and instructions of Customer; and
  3. assist Customer in ensuring compliance with its obligations in terms of the security of personal data. In particular, You undertake to promptly notify Customer of any data breach as described in section 11 below and to provide all reasonable assistance to Customer in the carrying out of a data protection impact assessment related directly or indirectly to the Agreement and/or the Data Processing Agreement.
  1. Cross Border and Onward Data Transfer

You will treat all Personal Data in compliance with the requirements of the Agreement and this Data Processing Agreement in all locations globally.

To the extent Personal Data originating from the EEA or Switzerland is transferred by Customer to You, or any of your Subprocessors located in countries outside the EEA or Switzerland that have not received a binding adequacy decision by the European Commission pursuant to Articles 25(6) and 31(2) of the Directive or, alternatively, pursuant to Article 45 of the Regulation or by a competent national data protection authority, such transfers should be managed as follows:

  1. Transfers from Customer to You, where appropriate, will be made subject to the terms of this Data Processing Agreement and the Model Clauses reproduced in Appendix 3.
  2. For transfers from You to Your Subprocessors, where appropriate, You shall ensure that such transfers are subject to (i) any appropriate transfer mechanisms that provide an adequate level of protection in compliance with the applicable requirements of Articles 25 and 26 of the Directive/ Article 45 of the Regulation, or (ii) execute Model Clauses incorporating security and other data privacy requirements at least as restrictive as those of this Data Processing Agreement.

No transfer to a country outside the EEA or Switzerland should be made without Customer’s written prior consent.

  1. Subprocessors

You shall not subcontract any of the Processing operations performed on behalf of Customer under the Agreement without the prior written consent of Customer.

Customer hereby expressly agrees to You using the Subprocessors listed in Appendix 1.

Where You engage Subprocessors with the consent of Customer, You 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 You under this Data Processing Agreement.

You remain responsible at all times for compliance with the terms of the Agreement and this Data Processing Agreement by Your Subprocessors.

Customer may request that You audit the Subprocessor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer in obtaining a third-party audit report concerning Subprocessor’s operations) to ensure compliance with its obligations. Customer will also be entitled, upon written request, to receive copies of the relevant terms of Your agreement with Subprocessors that may Process Personal Data.

  1. Technical and Organizational Measures

When Processing Personal Data on behalf of Customer in connection with the Agreement, You warrant that You have implemented and will maintain appropriate technical and organizational security measures for the Processing of such data, including the measures specified in Appendix 2.

These measures are intended to protect Personal Data against accidental or unauthorized loss, destruction, alteration, disclosure or access, and against all other unlawful forms of processing. Additional information concerning such measures may be specified in the Agreement.

You undertake to document the implementation of the technical and organisational measures to provide this documentation to Customer upon request and to present any update of this documentation to Customer.

  1. Audit Rights

Customer may audit, at its own expense, Your compliance with the terms of the Agreement and this Data Processing Agreement. If a third party is to conduct the audit, the third party must be mutually agreed to by Customer and You and must execute a written confidentiality agreement before conducting the audit.

To request an audit, Customer must submit an audit plan at least two weeks in advance of the proposed audit date to You describing the proposed scope, duration, and start date of the audit. You will review the audit plan and provide Customer with any concerns or questions You undertake to work cooperatively with Customer to agree on a final audit plan.

The audit will be conducted during regular business hours at the applicable facility and may not unreasonably interfere with Your business activities.

Customer will provide You a copy of any audit reports generated in connection with any audit under this section, unless prohibited by law. Customer may use the audit reports only for the purposes of meeting its regulatory audit requirements and/or confirming compliance with the requirements of the Agreement, this Data Processing Agreement and applicable law. The audit reports are Confidential Information of the parties under the terms of the Agreement.

You undertake to provide reasonable assistance with any audit conducted by Customer.

You agree that the competent data protection authority has the right to conduct an inspection of You, and of any Subprocessor.

You undertake to make available to Customer and/or the competent data protection authority all information necessary to demonstrate compliance with the obligations laid down in this Data Processing Agreement and applicable law and to fully cooperate with Customer and/or any competent data protection authority in the course of any audit and/or inspection.

  1. Data Breach Notification

For purposes of this section, “Security 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 on Your systems or Your environment. You will promptly inform Customer if You determine that Personal Data has been subject to a Security Breach (including by one of Your employees) or any other circumstance in which Customer is required to provide a notification under applicable law.

You will promptly investigate the Security Breach and take reasonable measures to identify its root causes and prevent a recurrence. As information is collected or otherwise becomes available, You will provide Customer with a description of the Security Breach, the type of data that was the subject of the breach, and other information Customer may reasonably request concerning the affected persons. The parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected persons and/or the relevant data protection authorities.

  1. Return and Deletion of Personal Data upon End of the Agreement or at Customer’s Request

Unless otherwise provided in the Agreement, following termination of the Agreement, You will return or otherwise make available for retrieval all Customer’s Personal Data.

Following the return of the data, or as otherwise specified in the Agreement, You will promptly delete all copies of Personal Data You may have, except as may be required by law.

  1. Legally Required Disclosures

Except as otherwise required by law, You will promptly notify Customer of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority (“Demand”) that it receives and which relates to the Personal Data You are Processing on Customer’s behalf.

At Customer’s request, You will provide Customer with reasonable information in Your possession that may be responsive to the Demand and any assistance reasonably required for Customer to respond to the Demand in a timely manner.

By: ………………………………

For and on the behalf of RETENTION YES SP. Z.O.O. . duly empowered to sign this Agreement.

   By: ……………………………… For and on the behalf of Customer duly empowered to sign this Agreement.  

Appendix 1: List of Subprocessors (if applicable)

Name of Subprocessor Address Activity of Subprocessor for You Subprocessors’ Security Measures
Amazon Web Services Dublin, Ireland leasing servers and other resources to process the data https://aws.amazon.com/products/security
Intercom California, USA live chat & help desk solutions https://www.intercom.com/security
Hetzner Online GmbH Gunzenhausen, Germany leasing servers and other resources to host online services https://www.hetzner.com/unternehmen/zertifizierung/

Appendix 2: Organizational and Technical Measure implemented by You

  1. Physical Access Control (measures in order to prevent unauthorized persons from gaining access to the data processing equipment (e.g. devices, database and application servers and related hardware) where the personal data are processed or used)

Outsourced processing: We host our Service with outsourced cloud infrastructure providers. Additionally, we maintain contractual relationships with vendors in order to provide the Service in accordance with our DPA. We rely on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.

Physical and environmental security: We host our product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls of providers are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.

  1. System Access Control (measures to prevent data processing systems from being used by unauthorized persons)

Authorization: Customer Data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of our products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.

Authentication: We implement a uniform password policy for our customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data.

  1. Data Access Control (measures to ensure that the persons entitled to use the data processing systems are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization)

Product access: A subset of our employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access is enabled through “just in time” requests for access; all such requests are logged. Employees are granted access by role, and reviews of high-risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months.

Background checks: All employees undergo a third-party background check prior to being extended an employment offer, in accordance with and as permitted by the applicable laws. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.

  1. Transmission Control (measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media)

In-transit: We make HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces. Our HTTPS implementation uses industry standard algorithms and certificates.

At-rest: We store user passwords following policies that follow industry standard practices for security. We have implemented technologies to ensure that stored data is encrypted at rest.

  1. Input Control (measures to ensure that it is possible to check and establish whether and by whom personal data have been input into data processing systems or removed)

Detection: We designed our infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Our personnel, including security, operations, and support personnel, are responsive to known incidents.

Response and tracking: We maintain a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, we will take appropriate steps to minimize product and Customer damage or unauthorized disclosure. Notification to you will be in accordance with the terms of the Agreement.

  1. Job Control (measures to ensure that the data are processed strictly in accordance with the instructions of Customer)

Our system is located in a secure cloud, we use encryption for any sensitive data, centralized access management with strict roles, and very limited access to databases for our stuff. Also, we log any actions on servers and cloud platform.

  1. Availability Control (measures to ensure data are protected from accidental destruction or loss)

Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.

Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.

Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry-standard methods.

Our products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with the goal of preventing single points of failure. This design assists our operations in maintaining and updating the product applications and backend while limiting downtime.

  1. Data Segregation (measures to separate the processing for different purposes and/or operations)

Measures to provide for separate processing (storage, amendment, deletion, transmission) of data for different purposes:

a) The environments used for development, testing and production purposes are physically separated

b) Usage of production un-anonymized data in the development environment is not allowed.

Appendix 3: Model Clauses (if applicable)

EUROPEAN COMMISSION DIRECTORATE-GENERAL JUSTICE

EUROPEAN COMMISSION

DIRECTORATE-GENERAL JUSTICE

Directorate C: Fundamental rights and Union citizenship

Unit C.3: Data protection

 

 

 

Commission Decision C(2010)593

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: Customer

Customer

Tel.: N/A ; fax:N/A ; e-mail:

Other information needed to identify the organisation: N/A

(the data exporter)

And

Name of the data importing organisation: RETENTION YES SP. Z.O.O

Address: Poland, 02-972, voivodeship Mazovetsky, Warsaw city, Adama Branickiego Street, No. 21, office U3

e-mail: info@esputnik.com

(the data importer)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject', and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1;

(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 organizational security measures' means those measures aimed at protecting 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.

1Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
  4. 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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;
  9. 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 the data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer2

The data importer agrees and warrants:

  1. 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;
  2. 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;
  3. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of 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,
    2. any accidental or unauthorized access, and
    3. any request received directly from the data subjects without responding to that request unless it has been otherwise authorized to do so;
  5. 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;
  6. at the request of the data exporter to submit its data processing facilities for an 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;
  7. 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;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

2Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, public security, the prevention, investigation, detection, and prosecution of criminal offenses or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements, or anti-money-laundering reporting requirements.

Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. 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.

Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

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

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses3. 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.

3This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

On behalf of the data exporter:

Name (written out in full):

Customer Position:

Address:

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

Signature……………………………………….

(stamp of organisation)

On behalf of the data importer:

Name (written out in full): Oleksii Danchenko

Position: Director

Address: Poland, 02-972, voivodeship Mazovetsky, Warsaw city, Adama Branickiego Street, No. 21, office U3

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

Signature……………………………………….

(stamp of organisation)

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

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

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Customer

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

an online service designed to create and send marketing and transactional messages to third parties

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

See as specified in Article 3.2 of Data Processing Agreement.

Categories of data

The personal data transferred concern the following categories of data (please specify):

See as specified in Article 3.1 of Data Processing Agreement.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify): N/A

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

See as specified in the Service Agreement.

   

DATA EXPORTER

Name: Customer

Authorised Signature

DATA IMPORTER

Name:RETENTION YES SP.Z.O.O.

Authorised Signature

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

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

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

See Appendix 2 of the Data Processing Agreement.