DPA

Last updated: 22 March 2021

This Data Processing Addendum (“DPA”) supplements Outerscore’s Terms of Use, as updated from time to time between Customer and Outerscore, or other agreement between Customer and Outerscore governing Customer’s use of the Cloud Services (the “Agreement”) when the GDPR applies to your use of the Outerscore Cloud Services to process Customer Data.  This DPA is an agreement between you and the entity you represent (“Customer”, “you” or “your”) and Outerscore GmbH, Speditionstrasse 15a, 40221 Duesseldorf (“Outerscore”).   Unless otherwise defined in this DPA or in the Agreement, all capitalised terms used in this DPA will have the meanings given to them in Section 17 of this DPA.

1. Data Processing

1.1 Scope and Roles
This DPA applies when Customer Data is processed by Outerscore.  In this context, Outerscore will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).

1.2 Customer Controls
The Cloud Services provide Customer with a number of controls, including security features and functionalities, that Customer may use to correct, delete or restrict Customer Data.   Without prejudice to Section 5.1, Customer may use these controls as technical and organisational measures to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects.

1.3  Details of Data Processing

1.3.1 Subject matter. The subject matter of the data processing under this DPA is Customer Data.

1.3.2 Duration.  As between Outerscore and Customer, the duration of the data processing under this DPA is determined by Customer.

1.3.3 Purpose.  The purpose of the data processing under this DPA is the provision of the Cloud Services initiated by Customer from time to time.

1.3.4 Nature of the processing. Compute, storage and such other Cloud Services as described in the Agreement or Order Form and initiated by Customer from time to time.

1.3.5 Type  of  Customer  Data.    Customer  Data  uploaded  to  the  Cloud Services under Customer’s Outerscore accounts.

1.3.6 Categories  of  data  subjects.    The  data  subjects  may  include  Customer’s customers, employees, suppliers and end-users.

 

2. Customer Instructions. The parties agree that this DPA and  the  Agreement constitute Customer’s documented instructions regarding Outerscore’s processing of Customer Data (“Documented Instructions”).  Outerscore will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Outerscore and Customer, including agreement on any additional fees payable by Customer to Outerscore for carrying out such instructions.  Customer is entitled to terminate this DPA and the Agreement if Outerscore declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.

 

3. Confidentiality of Customer Data. Outerscore will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Outerscore a demand for Customer Data, Outerscore will attempt to redirect the governmental body to request that data directly from Custome  As part of this effort, Outerscore may provide Customer’s basic contact information to the governmental body.   If compelled to disclose Customer Data to a governmental body, then Outerscore will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Outerscore is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.

 

4. Confidentiality Obligations of Outerscore Personnel.  Outerscore restricts its personnel from processing Customer Data without authorisation by Outerscore as described in the Outerscore Security Standard  Outerscore imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.

 

5. Security of Data Processing

5.1 Outerscore has implemented and will maintain the technical and organisational measures for the Outerscore Cloud Service as described in this Section.   In particular, Outerscore has implemented and will maintain the following technical and organisational measures:

(a) Security of the Outerscore Cloud Service Network as set out Outerscore’s IT Security Policy;

(b) physical security of the facilities as set out in Outerscore’s IT Security Policy;

(c) measures to control access rights for Outerscore employees and contractors in relation to the Outerscore Cloud Service as set out in Outerscore’s IT Security Policy; and

(d) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by Outerscore as described Outerscore’s IT Security Policy.

5.2 Customer may elect to implement technical and organisational measures in relation to Customer Data.  Such technical and organisational measures include the following which are obtained by Customer from Outerscoee or directly from a third party supplier:

(a)         pseudonymisation and encryption to ensure an appropriate level of security;

(b)        measures  to  ensure  the  ongoing  confidentiality,  integrity,  availability  and resilience of the processing systems and services that are being operated by Customer;

(c)          measures 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; and

(d)        processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented.

 

6. Sub-processing

6.1 Authorised Sub-processors
Customer agrees that Outerscore may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. The Outerscpre website (currently posted at https://outerscore.com/data-privacy/) lists sub-processors that are currently engaged by Outerscore to carry out processing activities on Customer Data on behalf of Customer.  At least 30 days before Outerscore engages any new sub-processor to carry out processing activities on Customer Data on behalf of Customer, Outerscore will update the applicable website.   If Customer objects to a new sub-processor, termination rights of Customer apply during a period of 30 days after Outerscore engages any new sub-processor. Customer consents to Outerscpore’s use of sub-processors as described in this Section. Except as set forth in this Section, or as Customer may otherwise authorise, Outerscore will not permit any sub-processor to carry out processing activities on Customer Data on behalf of Customer.

6.2 Sub-processor Obligations
Where Outerscore authorises any sub-processor as described in Section 6.1:

(i)         Outerscore will restrict the sub-processor’s access to Customer Data only to what is necessary to maintain the Cloud Services or to provide the Services to Customer and any End Users in accordance with the Documentation and Outerscore will prohibit the sub-processor from accessing Customer Data for any other purpose;

(ii)         Outerscore 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 Outerscore under this DPA, Outerscore will impose on the sub- processor the same contractual obligations that Outerscore has under this DPA; and

(iii)       Outerscore will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause Outerscore to breach any of Outerscore’s obligations under this DPA.

 

7. Data Subject Rights

Taking into account the nature of the Services, Outerscore offers Customer certain controls as described in Sections 1.2 and 5.2 that Customer may elect to use to comply with its obligations towards data subjects.  Should a data subject contact Outerscore with regard to correction or deletion of its personal data, Outerscore will use commercially reasonable efforts to forward such requests to Customer.

 

8. Optional Security  Features.     Outerscore  makes  available  a  number  of  security  features  and functionalities that Customer may elect to u Customer is responsible for (a) implementing the measures described in Section 5.2, as appropriate, (b) properly configuring the Services, (c) using the controls available in connection with the Services (including the security controls) to allow Customer to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (d) taking such steps as Customer considers adequate to maintain appropriate security, protection, and deletion of Customer Data, which includes use of encryption technology to protect Customer Data from unauthorised access and measures to control access rights to Customer Data.

 

9. Security Breach Notification

9.1 Security Incident.   Outerscore will (a) notify Customer of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident.

9.2 Outerscore Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, Outerscore will include in the notification under section 9.1(a) such information about the Security Incident as Outerscore is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Outerscore, and any restrictions on disclosing the information, such as confidentiality.

9.3 Unsuccessful Security Incidents.  Customer agrees that:

(i)      an unsuccessful Security Incident will not be subject to this Section 9.   An unsuccessful Security Incident is one that results in no unauthorised access to Customer Data or to any of Outerscore’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 unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and

(ii)        Outerscore’s obligation to report or respond to a Security Incident under this Section 9 is not and will not be construed as an acknowledgement by Outerscore of any fault or liability of Outerscore with respect to the Security Incident.

9.4 Communication.  Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Outerscore selects, including via email.  It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the Outerscore management console and secure transmission at all times.

 

10. Outerscore Certifications and Audits

10.1      Outerscore ISO-Certification. In addition to the information contained in this DPA, upon Customer’s request, and provided that the parties have an applicable NDA in place, OUTERSCORE will make available the certificates issued in relation to the ISO 27001 certification

10.2    Outerscore Audits. Outerscore uses external auditors to verify the adequacy of its security measures, including the security of the physical data centers from which Outerscore provides the Services. This audit: (a) will be performed at least annually; (b) will be performed according to ISO 27001 standards; (c) will be performed by independent third party security professionals at Outerscore’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Outerscore’s Confidential Information.

10.3      Audit Reports.   At Customer’s written request, and provided that the parties have an applicable NDA in place, Outerscore will provide Customer with a copy of the Report so that Customer can reasonably verify Outerscore’s compliance with its obligations under this DPA.

10.4      Privacy Impact Assessment and Prior Consultation.Taking into account the nature of the Services and the information available to Outerscore, Outerscore will assist Customer in complying with Customer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles 35 and 36 of the GDPR, by providing the information OUTERSCORE makes available under this Section 10.

 

11. Customer Audits
Customer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing Outerscore to carry out the audit described in Section 10.   If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending Outerscore written notice as provided for in the Agreement.  If Outerscore declines to follow any instruction requested by Customer regarding audits or inspections, Customer is entitled to terminate this DPA and the Agreemen  If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses.

 

12. Application of 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 recognised 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 Outerscore has adopted Binding Corporate Rules for Processors or an alternative recognised compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.

 

13. Termination of the DPA. This DPA shall continue in force until the termination of the Agreement (the “Termination Date”).

 

14. Return  or  Deletion  of  Cloud  Data
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 Section. 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 Outerscore or its Affiliates to liability.  No later than the end of this 90 day period, Customer will close all Outerscore accounts.   Outerscore will delete Customer Data when requested by Customer by using the Service controls provided for this purpose by Outerscore.

 

15. Duties to Inform.  Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Outerscore, Outerscore will inform Customer without undue delay.  OuterscoreE will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.

 

16. Entire Agreement; Conflict.  Except as amended by this DPA, the Agreement will remain in full force and effec If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control, except that the Terms of Use will control over this DPA.

 

17. Definitions.  Unless otherwise defined in the Agreement, all capitalised terms used in this DPA

will have the meanings given to them below:

Outerscore” means Outerscore GmbH, Speditionstrasse 15a, 40221 Duesseldorf, Germany and it’s Cloud Services

Customer” means you or the entity you represent -in Terms of Use also referred to as Contractor.

Customer Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Services under Customer’s Outerscore accounts.

“Cloud Service” means the software as a service made available by Outerscore to Contractor to supply products, services and resources like temp workers and freelancers to Joint Customers.

EEA” means the European Economic Area.

GDPR” means Regulation 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).

Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.

Security Incident” means a breach of OUTERSCORE’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.

“Standard Contractual  Clauses” means Annex 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.

 

 

Annex 1

Outerscore Security Standards

Capitalised terms not otherwise defined in this document have the meanings assigned to them in the Agreement.

 

1. Information Security Program
Outerscore will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure  Customer  Data  against  accidental  or  unlawful  loss,  access  or  disclosure,  (b) identify reasonably foreseeable and internal risks to security and unauthorised access to the Outerscore Cloud Service, and (c) minimise security risks, including through risk assessment and regular testing.  Outerscore will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:

1.1 Cloud Service Security.   The Outerscore Cloud Service will  be  electronically  accessible  to  employees, contractors and any other person as necessary to provide the Cloud Services.  Outerscore will maintain access controls and policies to manage what access is allowed to the Outerscore Cloud Service from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls.  Outerscore will maintain corrective action and incident response plans to respond to potential security threats.

1.2   Physical Security. Physical components of the Outerscore Cloud Services are housed in nondescript facilities (the “Facilities”).  Physical barrier controls are used to prevent unauthorised entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access  control  validation  (e.g.,  card  access  systems,  etc.) or  validation  by  human security  personnel  (e.g.,  contract  or  in-house  security  guard  service,  receptionist, etc.).  Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities.  Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorised employees or contractors while visiting the Facilities.

 

2. Continued Evaluation. Outerscore will conduct periodic reviews of the security of its Cloud Services and adequacy of its information security program as measured against industry security standards and its policies and procedure  Outerscore will continually evaluate the security of its Cloud Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

 

Annex 2

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 DPA (the “data exporter

and

Outerscore GmbH Speditionstrasse 15a, 40221 Duesseldorf, Germany. (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:

 

Clause 1 Definitions

(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 lawmeans the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)           ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

Clause 2 Details of the transfer

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

 

Clause 3 Thirdparty 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 Clause

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

 

Clause 4  Obligations of the data exporter

The data exporter agrees and warrants:

(a)          that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b)          that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c)           that  the  data  importer  will  provide  sufficient  guarantees  in  respect  of  the  technical  and organisational security measures specified in Appendix 2 to this contract;

(d)          that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e)          that it will ensure compliance with the security measures;

(f)           that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g)          to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h)          to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the

Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i)           that, in the event of subprocessing, the processing activity is carried out in accordance with Clause

11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j)           that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5 Obligations of the data importer

The data importer agrees and warrants:

(a)          to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(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;  Mandatory 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 Directive95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences 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 recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

(f)           at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g)          to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h)          that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i)           that the processing services by the subprocessor will be carried out in accordance with Clause 11; (j)           to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

 

Clause 6 Liability

  1. 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. 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 liability
  3. 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 Clause

 

Clause 7 Mediation and jurisdiction

  1. 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.

  1. 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. 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. 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. 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 export 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 Clause

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 establishe

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

 

Clause 12 Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

Data exporter

The data exporter is the entity identified as “Customer” in the DPA

Data importer

The data importer is Outerscore GmbH, a provider of Cloud Services.

 

Data subjects

Data subjects are defined in Section 1.3 of the DPA.

Categories of data

The personal data is defined in Section 1.3 of the DPA.

 

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 1.3 of the DPA.

 

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): The technical and organisational security measures implemented by the data importer are as described in the DPA.

 

§ 16 Changes to this Privacy Statement

This privacy statement represents our data processing in place. We therefore reserve the right to adjust this privacy statement to our data processing at any time. The latest version can be found at “https://www.outerscore.com/dpa”