Last updated: September 09, 2021
As per Article 28(3) of the General Data Protection Regulation (“GDPR”),to share Personal Data of individuals situated in European Union (“EU”), European Economic Area (“EEA”), Switzerland and United Kingdom (“UK”), in a more regulated manner; controllers, processors, and sub-processors are required to enter into written contracts, or data processing agreements. Data processing agreements establish roles and responsibilities for controllers, processors, and sub-processors, and create liability limitations. Essentially, this is a form of assurance that the processor or sub-processor performs their due diligence to ensure the privacy of Personal Data.
Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
2.1.“Content” shall mean any information, materials, media, applications, data, services, subject matter, including Personal Data, or solutions created and/or uploaded by a Creator on the Platform, including but not limited to Cohort-Based-Courses (“CBCs”) or single cohort sessions.
2.2.“Controller” shall mean the Person, who alone or jointly with others, determines the purpose and means of the Processing of Personal Data.
2.3.“Data Protection Laws” shall mean and include all data protection laws, regulations, and rules to the extent applicable for Processing Personal Data that are applicable to either Party including: (i) EU Data Protection Laws and (ii) all privacy and data protection laws and regulations of the United States, including the California Consumer privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. (“CCPA”), and the data protection or privacy laws of any other country, as may be amended, superseded, or replaced from time to time.
2.4.“Data Subject Request” shall mean an actual or purported request, notice, or complaint from, or on behalf of, a Data Subject under Data Protection Laws, including, but not limited to, requests under Articles 16, 17, or 18 of the GDPR, requests for data portability, objections to Processing, or requests not to be subject to automated decision making.
2.5.“Effective Date” means the later of the date on which the DPA becomes effective or the date on which Creator provides Personal Data contained in Creator Data to Graphy for processing.
2.6.“EU Data Protection Laws” shall mean and include all data protection laws and regulations applicable to the EU, EEA, Switzerland, and the UK, including without limitation (i) GDPR; (ii) Privacy and Electronic Communications Directive 2002 (“e-Privacy Directive”); (iii) applicable national legislation implementing the GDPR and e-Privacy Directive; and (iii) with respect to the UK, any applicable national legislation that may replace the GDPR or any other law relating to data and privacy as a consequence of the UK leaving the EU, as amended from time to time.
2.7.“Creator Data” shall refer to Content that is created, uploaded, submitted, or otherwise provided to the Platform by Creator, including any Personal Data included in the Content or submitted by Learners in connection with such Content.
2.8.“Learner Data” shall refer to a limited set of information which includes: (i) a Learner’s account information on the Platform, including a Learner’s name and email address; (ii) information about a Learner’s enrolment and participation in Content, including course or session completion status, quiz results (if any) and certificates (if any and applicable) taught by the Creator; and (iii) any messages or communications a Learner exchanges with a Creator through the Platform.
2.9.“Personal Data” shall mean and included any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified by reference to 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. In addition to the foregoing, Personal Data shall have the meaning ascribed to it under the Data Protection Laws.
2.10.“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
2.11.“Processor” shall mean the Person who processes Personal Data on behalf of the Controller.
2.12.“Standard Contractual Clauses”/(“SCCs”) shall mean the SCCs for Controller-Processor transfer of data issued by the European Commission in decision 2010/87/EU, which is also specifically mentioned in Exhibit 1 attached hereto and the SCCs for Controller-Controller transfer of data issued by the European Commission in decision 2004/915/EC, (as amended/updated from time to time).
2.13.“Sensitive Personal Data”means such Personal Data that may be related to or constitute – (i) financial data (except the truncated last four digits of credit/debit card), (ii) health data, (iii) official identifier (such as biometric data, Aadhar Number, Social Security Number, Driver’s license, passport, etc.,), (iv) information about sexual life, sexual identifier, race, ethnicity, political or religious belief or affiliation, (v) account details and passwords, or (vi) other data/information categorized as ‘sensitive personal data’ or ‘special categories of data’ under the applicable Data Protection Laws.
2.14.“Sub-Processor” means any Person appointed by Graphy to process data in furtherance of Graphy’s Processing of Creator Data.
2.15.The terms, "Commission", "Controller", "Data Subject", "Member State", "Processing" and "Supervisory Authority" shall have the same meaning as in the applicable Data Protection Laws, whether or not such terms are capitalized therein.
3. Roles of the Parties:
4.Obligations of the Parties:
4.1.Creator shall –
(i)in his/her/its use of the Platform and Processing of Creator Data and Learner Data, comply with all applicable laws, including without limitation to the Data Protection Laws;
(iii)Creator shall implement appropriate technical and organizational measures to protect Learner Data and use the level of protection as required by Data Protection Laws; and
(iv)be solely responsible for the accuracy, quality, and legality of Creator Data and the means by which such data was acquired by the Creator.
4.3.Creator shall have sole responsibility for the accuracy, quality, and legality of Creator Data and the means by which Creator acquires Creator Data. Creator represents and warrants that it has all rights and necessary consents and that it has provided all necessary notices to Process Creator Data and to transfer Creator Data to Graphy. Creator shall obtain all necessary consents from Data Subjects and shall maintain a record of such rights and consents.
5.Scope and Processing of Creator Data:
5.1.Graphy shall process Creator Data in accordance with the following:
(ii)Duration of the Processing: Graphy will process the Creator Data for the duration of the DPA, unless otherwise agreed to in writing.
(iii)Nature and Purpose of the Processing: Graphy provides a holistic Platform for Creators to create, design, publish and sell their Content and in using the Platform, Creators may upload, submit, or otherwise provide Creator Data to Graphy, which shall be processed by Graphy in accordance with the Documented Instructions to Graphy. Processing activities may include collection, retrieval, organization, storage, enhancement, aggregation, de-identification, use, and disclosure. Creator acknowledges and agrees that it controls how Creator Data is used and processed.
(iv)Data Subjects and Categories of Personal Data: The extent of Personal Data in the Creator Data provided by the Creator on the Platform is determined and controlled by the Creator, in its sole discretion. The type of Data Subjects and categories of Personal Data included in any Creator Data will depend on the nature of Creator Data submitted by the Creator, which may include Personal Data (such as biographical and contact information) about the Creator and/or third parties.
5.2. If either Party becomes aware of or has reason to believe that any Documented Instruction is in violation of or infringes upon any Data Protection Law, then it shall notify the other Party.
Graphy shall ensure that its employees, authorized agents, and any Sub-Processors authorized to process Creator Data have agreed to comply with confidentiality obligations with respect to Creator Data, except where Creator Data is required to be disclosed by law and/or the relevant data/information is already in the public domain.
5.3. Creator agrees that it will not cause Graphy to process any Personal Data that presents a high risk to the rights and freedoms of data subjects.
6. Scope and Processing of Learner Data:
(i)he/she/it is a Processor of Learner Data under applicable Data Protection Laws;
(iii)he/she/it will comply with the obligations applicable to it under applicable Data Protection Laws with respect to the processing of Learner Data.
Further, the Creator understands and agrees that if the Creator collects, uses, stores, or otherwise processes Learner Data, the Creator shall do so securely and only for as long as it is needed and always in accordance with applicable privacy and data protection laws. The Creator shall also disclose his/her/its privacy practices on the Creator’s Page.
In instances where the personal data being processed is subject to GDPR, Graphy shall ensure that each of its Sub-Processors is bound by substantially the same data protection obligations applicable to Graphy under this DPA by way of contract, including sufficient guarantees to implement appropriate technical and organizational measures such that Processing by the Sub-Processor will meet the requirements imposed by GDPR. Creator provides a general consent for Graphy to engage onward Sub-Processors in the Processing of Creator Data that is subject to GDPR without Creator’s prior consent, provided that Graphy has entered into an agreement with the Sub-Processor containing data protection obligations that are as restrictive as the obligations under this DPA (to the extent applicable to the services provided by the Sub-Processor). This provision shall not apply to personal data that is not subject to GDPR.
8. Data Subject Requests:
8.1.Services on the Platform provide the Creator with the ability to modify, delete, and restrict access to Creator Data available on the Platform, which would help the Creator in complying with his/her/its obligations under Data Protection Laws with respect to responding to requests from Data Subjects regarding Creator Data.
8.2.In the event that any request, correspondence, inquiry, or complaint from a Data Subject, regulatory agency, or third party, including, but not limited to law enforcement, is made directly to Graphy in connection with Graphy’s Processing of Creator Data, Graphy shall inform Creator of the request, correspondence, inquiry, or complaint. Unless legally obligated to do so, Graphy shall not respond to any such request, inquiry, or complaint without Creator’s prior consent. In the case of a legal demand for disclosure of Personal Data in the form of a subpoena, search warrant, court order, or other compulsory disclosure request, Graphy shall attempt to redirect the requesting party or agency to request disclosure from the Creator.
8.3.Each party to this DPA, shall, within the turn-around-time required by Data Protection Laws, promptly respond to Data Subject requests received by itself concerning the processing of the applicable Learner Data. If the Creator receives any Data Subject requests regarding Learner Data, Creator will promptly (and in any event within three business days) notify Graphy and provide Graphy with a copy of the request. To the extent that Graphy is a Controller of the Learner Data that is the subject of such request, Graphy will respond directly to the Learner, without further notice of such request to the Creator. Further, any request directly received by Graphy from a Data Subject pertaining to Learner Data on the Platform shall be solely dealt with by Graphy and Graphy shall not be required to notify the Creator regarding the actions taken by Graphy pertaining to such request from the Data Subject.
9. CCPA Requirements:
9.1.To the extent that Learner Data is subject to the CCPA, the Parties agree that the Creator is acting solely as a service provider with respect to Learner Data.
9.2.The Creator shall not retain, use, or disclose any Learner Data subject to the CCPA for any purpose other than for the specified purpose of performing the services specified in this DPA or any other Agreement with Graphy.
9.3.Creator agrees that any Learner Data that is subject to the CCPA was not sold to the Creator and the Creator shall not “sell” personal information as is defined under the CCPA. Creator further agrees that it shall not retain, use, or disclose personal information outside of the direct business relationship between Creator and Graphy.
9.4.Creator shall provide assistance to Graphy, as reasonably necessary, to fulfil any obligation to respond to consumer requests under the CCPA. Creator shall enable Graphy to fulfil its obligations to the consumer in compliance with the CCPA within the mandated time limits.
9.5.By executing this DPA, Creator certifies that it understands the restrictions set out in this Section and will comply with them.
9.6.The Creator may deidentify or aggregate any Learner Data that is subject to the CCPA as part of performing services specified in this DPA and any other agreement with Graphy.
10. Security and Compliance:
10.1.Considering the state of technical developments, the costs of implementation, and the nature, scope, context, and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Graphy undertakes to establish and maintain appropriate technical and organizational measures in order to protect Creator Data against accidental, unauthorised, or unlawful destruction, loss, alteration, disclosure, or access.
10.2.Each Party shall take reasonable steps to ensure that any natural person acting under the authority of that Party who has access to Learner Data does not process Learner data in violation of Data Protection Laws or this DPA. Each Party shall be responsible for the safeguards of its personnel with respect to Learner Data and shall take appropriate steps to confirm that its personnel are protecting the security, privacy, and confidentiality of Learner Data consistent with the requirements of this DPA.
10.3.If either Party becomes aware of a Personal Data Breach that affects Creator Data or Learner Data, the discovering Party shall notify the other Party of the Personal Data Breach without undue delay via email to the registered email address of the Creator or to Graphy at firstname.lastname@example.org
10.4.To ensure compliance with the applicable Data Protection Laws, Graphy shall make available to the Creator information necessary to demonstrate compliance with the legal obligations related to the processing of Creator Data by Graphy on behalf of the Creator.
10.5.Graphy shall respond to all reasonable requests for information made by Creator to confirm Graphy’s compliance with this DPA, upon Creator's written request to email@example.com.
10.6.Graphy will implement appropriate technical and organizational safeguards prior to and during the processing of any Learner Data and ensure a level of security appropriate to the risks presented by the processing of Learner Data and the nature of such Learner Data, and these measures shall remain in place during the duration of Creator’s processing of Learner Data.
10.7. Creator agrees not to transfer Learner Data to third parties except under written contracts that guarantee at least a level of protection and information security as provided for under this DPA and Creator agrees to remain fully liable to Graphy for any third party’s failure to comply with the requirements of this DPA.
11. Data Transfers:
11.1. Where the Creator belongs to a country outside India, the Creator acknowledges and agrees that Creator Data will be transferred to India, a jurisdiction that has been determined not to offer an adequate level of data protection by the European Commission. Creator further acknowledges and agrees that Graphy’s Sub-Processor for cloud storage and related services may in limited instances transfer Creator Data to other jurisdictions for which the European Commission has not adopted an adequacy decision. To facilitate such transfers, the parties hereby enter into the Standard Contractual Clauses attached hereto as Exhibit 1, which are incorporated by reference herein. The Parties shall work together during the term of this agreement to ensure that they (or any relevant Sub-Processor) have a legally-approved mechanism in place to facilitate such data transfers, including working together to document the appropriateness of such mechanism in accordance with applicable Data Protection Laws relating to the transfer.
11.2. To the extent that the Creator’s Data transfer is protected by the Data Protection Laws, Parties hereto agree to abide by and process Creator’s Data in compliance with the Standard Contractual Clauses, which are incorporated in full by reference and form an integral part of this DPA.
11.3.Creator acknowledges and agrees that Graphy shall be entitled to enter into Standard Contractual Clauses with any Sub-processor on behalf of the Creator.
11.4. If a Creator receiving Learner Data from Graphy is located in a country not recognized by the European Commission as providing an adequate level of protection for Personal Data within the meaning of GDPR, Creator agrees to and shall enter into Standard Contractual Clauses prior to any transfer of Learner Data which may be subject to GDPR under this DPA.
12. Limitation of Liability:
13. Term and Termination:
When the Creator deletes his/her/its account on the Platform, all of Creator’s Data under Graphy’s possession or control, will either be returned to the Creator or deleted from Graphy’s servers. However, in certain cases, Graphy will need to retain some or all of Creator’s Data to comply with its legal obligations.
14.1. Unless otherwise agreed to between the Parties hereto, Creator acknowledges and agrees this DPA shall replace any existing data processing agreement that the parties may have previously entered into in connection with Graphy Services.
14.2.Severability: If any provision of this DPA will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this DPA will otherwise remain in effect.
14.4.Amendments & updates: Graphy may update the terms of this DPA from time to time, at its sole discretion, provided Graphy gives Creator reasonable advance notice of the update.
14.5.Notices: Unless otherwise specified in this Agreement, each party giving notice or other communication required or permitted under this Agreement shall use one of the following methods of delivery: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), or email.
15. Governing law and Jurisdiction:
If You are a Creator situated in India and accessing the Platform from India, then in unlikely event of dispute between us, this DPA shall be governed by and construed in accordance with the laws of India. You agree, as we do, to submit to the exclusive jurisdiction of the courts at Bangalore, India.
On the other hand, If You are a Creator situated outside the territory of India and accessing the Platform from such country or territory outside India, then in the unlikely event of dispute between us, this DPA shall be governed by and construed in accordance with the laws of State of Delaware, US and You agree, as we do, to submit to the exclusive jurisdiction of the courts at State of Delaware, US.
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 Creator ( i.e., the data exporter) and Graphy(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 contained in Creator Data.
For the purposes of the Clauses:
(1). ‘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;
(2). ‘the data exporter’ means the controller who transfers the personal data;
(3). ‘the data importer’ means the processor who agrees to receive from the data exporter the personal data intended for processing on his/her/its behalf after the transfer in accordance with his/her/its 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;
(4). ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;
(5). ‘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;
(6). ‘technical and organisational security measures’means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
(1). The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
(2). The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
(3). The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
(4). The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a).that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b).that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c).that the data importer will provide sufficient guarantees in respect of the technical and 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j).that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a).to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b).that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c).that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d).that it will promptly notify the data exporter about:
(i)any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii)any accidental or unauthorised access; and
(iii)any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e).to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f).at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g).to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i).that the processing services by the sub-processor will be carried out in accordance with Clause 11; and
(j).to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
(1). The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
(1).The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a).to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b).to refer the dispute to the courts in the Member State in which the data exporter is established.
(2).The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
(1).The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
(2).The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
(1).The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
(2).The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
(3).The provisions relating to data protection aspects for sub-processing 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 sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
(1).The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
The data exporter is: Creator, creator of content on the Platform and user of the Platform
The data importer is: Graphy, provider of the Platform
The personal data transferred concern the following categories of data subjects: Individuals selected by Creator and included within Creator Data at Creator’s sole discretion and information collected and processed in providing the Services. Creator acknowledges and agrees that it controls how any Personal Data contained within Creator Data is processed by Graphy.
Categories of data
The personal data transferred concern the following categories of data: Any Personal Data contained in Creator Data is included at the Creator’s sole discretion and may include first and last name, contact information (company, email, phone, physical address), professional life data, personal life data. Creator acknowledges and agrees that it controls how any Personal Data contained within Creator Data is processed by Graphy.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: Creator acknowledges that the Platform is not intended for processing of special categories of data as defined by GDPR and agrees that it will not provide (or cause or be provided) any special categories of data for processing as stated in this DPA and that Graphy will not be processing any special categories of data.
Appendix 2 to the Standard Contractual Clauses
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):
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 for the rights and freedoms of natural persons, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.