Saleswhale Data Processing Addendum

Controller to Processor

This Saleswhale Data Processing Addendum (this “Addendum”) is entered into by and between Saleswhale, Inc. (“Saleswhale”) and you (the “Client”) (each, a “Party” and, collectively, the “Parties”).This Addendum is effective as of the date you agree to it (the “Effective Date”) by clicking the “I Accept” button in the applicable online form or webpage that makes reference to this Addendum.

Recitals

WHEREAS, the Parties entered into the Saleswhale Services Order Form, which incorporates by reference the Saleswhale Terms of Use (collectively, the “Service Agreement”) and have retained the power to alter, amend, revoke, or terminate the Service Agreement; and

WHEREAS, the Parties now wish to amend the Service Agreement to ensure that Client Personal Data (as defined below) transferred between the Parties is Processed (as defined below) in compliance with applicable data protection principles and requirements;

NOW, THEREFORE, in consideration of the mutual agreements set forth in this Addendum, the Parties agree as follows:

1. Definitions.
   1. The definitions used in this Addendum shall have the meanings set forth or referenced in this Addendum. Capitalized definitions, not otherwise defined herein, shall have the meaning given to them in the Service Agreement. Except as modified or supplemented below, the definitions of the Service Agreement, as well as all the other terms and conditions of the Service Agreement, shall remain in full force and effect.
   2. For the purpose of interpreting this Addendum, the following terms shall have the meanings set out below:
      1. “Applicable Laws” means all laws applicable to the Processing of Client Personal Data, including EU Data Protection Laws, other laws of the European Union or any Member State thereof, and the laws of any other country to which the Processing of Client Personal Data is subject;
      2. “Client” means the party that has entered into this Addendum with Saleswhale, as indicated in the opening paragraph of this Addendum, including all affiliates of that entity that are also bound by the Service Agreement, if any;
      3. “Client Personal Data” means any Personal Data Processed by Saleswhale or a Subprocessor on behalf of the Client pursuant to or in connection with the Service Agreement;
      4. “Contracted Processor” means Saleswhale, a Subprocessor, or both collectively;
      5. “EU Data Protection Laws” means the GDPR, the domestic legislation of each Member State implementing and supplementing the GDPR, as well as other laws of the European Union or any Member State thereof to which the Processing of Client Personal Data is subject, as amended, replaced, or superseded from time to time;
      6. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation);
      7. “Restricted Transfer” means any transfer of Client Personal Data that would be prohibited by EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of EU Data Protection Laws) in the absence of the execution of the Standard Contractual Clauses or another lawful data transfer mechanism, as set out in Section 12 below;
      8. “Services” means the services and other activities to be supplied to or carried out by or on behalf of Saleswhale for the Client pursuant to the Service Agreement; and
      9. “Subprocessor” means any natural or legal person (including any third party but excluding an employee of Saleswhale or an employee of any of its sub-contractors) appointed by or on behalf of Saleswhale to Process Client Personal Data on behalf of the Client in connection with the Service Agreement.
   3. The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor”, “Rights of the Data Subjects”, “Supervisory Authority”, and “Third Country”, whether capitalized or not, shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Applicability.
   1. This Addendum will not apply to the Processing of Client Personal Data, where such Processing is not regulated by EU Data Protection Laws. The Parties to this Addendum hereby agree that the terms and conditions set out herein shall be added as an addendum to the Service Agreement. Except where the context requires otherwise, references in this Addendum to the Service Agreement are to the Service Agreement as amended or supplemented by, and including, this Addendum.
   2. The Terms of this Addendum shall take effect on the Effective Date and shall continue concurrently for the term of the Service Agreement.
   3. If you are accepting the terms of this Addendum on behalf of an entity, you represent and warrant to Saleswhale that you have the authority to bind that entity and its affiliates, where applicable, to the terms and conditions of this Addendum.
3. Processing of Client Personal Data.
   1. In the context of this Addendum, the Client acts as a Personal Data Controller and Saleswhale acts as a Personal Data Processor with regard to the Processing of Client Personal Data.
   2. Saleswhale shall:
      1. comply with all EU Data Protection Laws in the Processing (as further elaborated in Exhibit A, attached hereto and incorporated by reference) of Client Personal Data;
      2. not Process Client Personal Data other than on the Client’s relevant documented instructions, including with regard to transfers of Client Personal Data to a Third Country or an international organization, unless such Processing is required by EU Data Protection Laws to which the relevant Contracted Processor is subject, in which case Saleswhale shall, to the extent permitted by EU Data Protection Laws, inform the Client of that legal requirement before the applicable act of Processing;
      3. only conduct transfers of Client Personal Data, where such transfer would otherwise be prohibited by EU Data Protection Laws due to there being no applicable lawful exemption or derogation, in compliance with all applicable conditions, as laid down in the EU Data Protection Laws;
      4. not retain, delete, or otherwise Process Client Personal Data contrary to or in the absence of the direct instructions of the Client, provided, however, that the Client expressly and irrevocably authorizes such retention, deletion or other Processing if and to the extent required or allowed by any applicable law; and
      5. immediately inform the Client in the event that, in Saleswhale’s opinion, a Processing instruction given by the Client may infringe EU Data Protection Laws.
   3. The Client warrants that it will promptly update, when necessary, all information provided during the process of acceptance of this Addendum, including, where applicable, the contact details of its Data Protection Officer and/or European Union Representative. Any such updates shall be sent by email to [email protected].
   4. The Client instructs Saleswhale (and authorizes Saleswhale to instruct each Subprocessor) to Process Client Personal Data, and in particular, transfer Client Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Service Agreement and this Addendum.
   5. The Client represents and warrants that it has all necessary rights to provide the Client Personal Data to Saleswhale for the purpose of Processing such data within the scope of this Addendum and the Service Agreement.
4. Saleswhale Personnel.
   1. Saleswhale shall take reasonable steps to ensure the reliability of any employee, agent, or contractor of any Contracted Processor who may have access to the Client Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Client Personal Data, as strictly necessary for the purposes of the Service Agreement, and to comply with EU Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to formal confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security of Processing.
   1. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing, as well as the risk of varying likelihood and severity to the rights and freedoms of natural persons, Saleswhale shall, with regard to Client Personal Data, implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR as well as assist the Client with regard to ensuring compliance with the obligations pursuant to Article 32 of the GDPR borne directly by the Client.
   2. In assessing the appropriate level of security, Saleswhale shall take account, in particular, of the risks that are presented by the nature of such Processing activities, and particularly those related to possible Personal Data Breaches.
6. Subprocessing.
   1. The Client authorizes Saleswhale to appoint (and permit each Subprocessor appointed in accordance with this Section 6 to appoint) Subprocessors in accordance with this Section 6 and any possible further restrictions, as set out in the Service Agreement and this Addendum.
   2. Saleswhale may continue to use those Subprocessors already engaged by Saleswhale as of the Effective Date subject to Saleswhale meeting the obligations set out in Section 6.4. The list of Saleswhale’s Subprocessors, current as of the Effective Date, is laid down in Exhibit B, attached hereto and incorporated by reference.
   3. Saleswhale shall give the Client prior written notice of the appointment of any new Subprocessor, by way of sending a notice. If, within 14 days of sending of each such notice, the Client notifies Saleswhale in writing of any reasonable objections to the proposed appointment, Saleswhale shall not appoint or disclose any Client Personal Data to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Client and, in turn, the Client has been provided with a reasonable written explanation of the steps taken to account for any such objections. If the Client, nevertheless, objects to the proposed appointment, it shall be entitled to terminate the Service Agreement as a remedy.
   4. With respect to each Subprocessor, Saleswhale shall:
      1. carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Client Personal Data required by this Addendum, the Service Agreement, and EU Data Protection Laws before the Subprocessor first Processes Client Personal Data or, where applicable, in accordance with Section 6.2; and
      2. ensure that the arrangement between: on the one hand, (i) Saleswhale, or (ii) the relevant intermediate Subprocessor; and on the other hand, the respective prospective Subprocessor, is governed by a written contract, including terms which offer at least the same level of protection for Client Personal Data as those set out in this Addendum, and that such terms meet the requirements of Article 28(3) of the GDPR.
7. Rights of the Data Subjects.
   1. Taking into account the nature of the Processing, Saleswhale shall assist the Client by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Client’s obligations, as reasonably understood by the Client, to respond to requests to exercise Rights of the Data Subjects under the EU Data Protection Laws.
   2. With regard to Rights of the Data Subjects within the scope of this Section 7, Saleswhale shall:
      1. promptly notify the Client if any Contracted Processor receives a request from a Data Subject under any EU Data Protection Laws in respect of Client Personal Data; and
      2. ensure that the Contracted Processor does not respond to that request, except on the documented instructions of the Client, or as required by EU Data Protection Laws to which the Contracted Processor is subject, in which case Saleswhale shall, to the extent permitted by EU Data Protection Laws, inform the Client of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach.
   1. Saleswhale shall notify the Client without undue delay upon Saleswhale becoming aware of a Personal Data Breach affecting Client Personal Data under Salewhale’s direct control or upon Saleswhale being notified of a Personal Data Breach affecting Client Personal Data under the direct control of a Subprocessor, providing the Client with sufficient information to allow the Client to meet any applicable obligations pursuant to the EU Data Protection Laws, such as to report to the Supervisory Authorities or any other competent authorities, or inform the Data Subjects of the Personal Data Breach.
   2. Saleswhale shall co-operate with the Client and take all reasonable commercial steps to assist the Client in the investigation, mitigation, and remediation of each such Personal Data Breach.
   3. Saleswhale’s notification of or response to a Personal Data Breach under this Section 8 will not be construed as an acknowledgement by Saleswhale of any fault or liability with respect to the Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation.
   1. Saleswhale shall provide the Client with relevant documentation, such as, if available, an audit report (upon a written request and subject to obligations of confidentiality), with regard to any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, when the Client reasonably considers that such data protection impact assessments or prior consultations are required pursuant to Article 35 or 36 of the GDPR, or pursuant to the equivalent provisions of any other EU Data Protection Laws but, in each such case, solely with regard to Processing of Client Personal Data by, and taking into account the nature of the Processing and information available to, the respective Contracted Processors.
10. Deletion or Return of Client Personal Data.
    1. Saleswhale shall provide the Client with the technical means, consistent with the way the Services are provided, to request the deletion of Client Personal Data within the term of this Addendum and the Service Agreement, unless EU Data Protection Laws require or allow storage of any such Client Personal Data.
    2. Saleswhale shall promptly following the date of cessation of Services involving the Processing of Client Personal Data, at the choice of the Client, delete or return all Client Personal Data to the Client, as well as delete existing copies, unless EU Data Protection Laws require or allow storage of any such Client Personal Data.
11. Deletion or Return of Client Personal Data.
    1. Where the Client is entitled to and desires to review Saleswhale’s compliance with the EU Data Protection Laws, the Client may request, and Saleswhale will provide (subject to obligations of confidentiality) relevant documentation, or any relevant audit report Saleswhale might have been issued. If the Client, after having reviewed such audit report(s), still reasonably deems that it requires additional information, Saleswhale shall further reasonably assist and make available to the Client, upon a written request and subject to obligations of confidentiality, all other information (excluding legal advice) and/or documentation necessary to demonstrate compliance with this Addendum, and the obligations pursuant to Articles 32 to 36 of the GDPR in particular, and shall allow for and contribute to audits, including remote inspections of the Services, by the Client or an auditor mandated by the Client with regard to the Processing of the Client Personal Data by the Contracted Processors. Saleswhale shall provide the assistance described in this Section 11, insofar as in Saleswhale’s reasonable opinion such audits, and the specific requests of the Client, do not interfere with Saleswhale’s business operations or cause Saleswhale to breach any legal or contractual obligation to which it is subject.
    2. The Client agrees to pay Saleswhale, upon receipt of invoice, a reasonable fee based on the time spent, as well as to account for the materials expended, in relation to the Client exercising its rights under this Section 11 or Clause 5(f) of the Standard Contractual Clauses, as set out in Exhibit C, attached hereto and incorporated by reference, and which constitute an integral part of this Addendum (the “Standard Contractual Clauses”).
12. Restricted Transfers.
    1. The Client (as “data exporter”) and Saleswhale (as “data importer”) hereby enter into, as of the Effective Date, the Standard Contractual Clauses. The Parties are deemed to have accepted and executed the Standard Contractual Clauses in their entirety, including the appendices.
    2. With regard to any Restricted Transfer from the Client to Saleswhale within the scope of this Addendum, one of the following transfer mechanisms shall apply, in the following order of precedence:
       1. Saleswhale’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications (if any and insofar as the prospective Restricted Transfer would be considered lawful under this mechanism);
       2. the Standard Contractual Clauses (insofar as the prospective Restricted Transfer would be considered lawful under this mechanism); or
       3. any other lawful basis, as laid down in EU Data Protection Laws.
    3. In cases where the Standard Contractual Clauses apply and there is a conflict between the terms of the Addendum and the terms of the Standard Contractual Clauses, the terms of the Standard Contractual Clauses shall control.
13. General Terms.
    1. All clauses of the Service Agreement that are not explicitly amended or supplemented by the clauses of this Addendum shall remain in full force and effect and shall apply so long as they do not contradict Applicable Laws.
    2. In the event of any conflict between the Service Agreement (including any annexes and appendices thereto) and this Addendum, the provisions of this Addendum shall control.
    3. Should any provision of this Addendum be found invalid or unenforceable pursuant to any applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Addendum will continue in effect.
    4. If Saleswhale makes a determination that it can no longer meet its obligations in accordance with this Addendum, it shall promptly notify the Client of that determination, and cease the Processing or take other reasonable and appropriate steps to remediate.

Exhibit A

1. Pursuant to Article 28(3) of the GDPR, further details of the Processing, in addition to the ones laid down in the Service Agreement and this Addendum, include:
   1. The subject matter of the Processing of Client Personal Data is:
      The subject matter of the Processing of Client Personal Data pertains to the provision of Services, as requested by the Client.
   2. The duration of the Processing of Client Personal Data is:
      The duration of the Processing of Client Personal Data is generally determined by the Client and is further subject to the term of this Addendum and the Service Agreement, respectively, in the context of the contractual relationship between Saleswhale and the Client.
   3. The nature and purpose of the Processing of Client Personal Data is:
      The purpose of Processing of Client Personal Data pertains to the provision of sales assistance, as requested by the Client. The nature of such Processing is related to these purposes and is elaborated on in this Addendum and the Service Agreement.
   4. The types of Client Personal Data to be Processed include:
      Biographical data, such as name, email address, phone number; meta data; any other category of Personal Data that could be included in an email.
   5. The categories of Data Subjects to whom the Client Personal Data relates include: Sales prospects of the Client (Saleswhale’s customer).
   6. The obligations and rights of the Client are: The rights and obligations of the Client are set out in the Service Agreement and this Addendum.

Exhibit B

List of Saleswhale Subprocessors

Available upon request.

Exhibit C

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, the Client,as defined in the Addendum (as “data exporter”), and Saleswhale, as defined in the Addendum (as “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:

• ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
• ‘the data exporter’ means the controller who transfers the personal data;
• ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
• ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
• ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
• ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

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

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.

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 organisational 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, 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;
5. that it will ensure compliance with the security measures;
6. 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;
7. 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;
8. 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
9. that it will ensure compliance with Clause 4(a) to (i).

Clause 5 – Obligations of the data importer

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 organisational 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 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,
   2. any accidental or unauthorised access, and
   3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised 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 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.

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 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.

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.
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.

Appendix 1 to the Standard Contractual Clauses

By entering into the Standard Contractual Clauses, pursuant to Section 12.1 of the Addendum, the parties are deemed to have signed this Appendix 1

• Data exporter
  The data exporter is the Client, as defined in the Addendum.
• Data importer
  The data importer is Saleswhale, as defined in the Addendum.
• Data subjects
  As indicated under Section 1.5 of Exhibit A of the Addendum.
• Categories of data
  As indicated under Section 1.4 of Exhibit A of the Addendum.
• Processing operations
  As indicated under Section 1.3 of Exhibit A of the Addendum.

Appendix 2 to the Standard Contractual Clauses

By entering into the Standard Contractual Clauses, pursuant to Section 12.1 of the Addendum, the parties are deemed to have signed this Appendix 2.

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):

Data importer has implemented and will maintain the technical and organizational security measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.