Velostrata Data Processing and Security Terms

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Last modified: January 7, 2019 | Previous Versions

The customer agreeing to these terms ("Customer"), and Velostrata Ltd. ("Velostrata"), have entered into an agreement under which Velostrata has agreed to provide the Services to Customer (as amended from time to time, the "Agreement").

These Velostrata Data Processing and Security Terms, including their appendices, (the "Terms") will be effective and replace any previously applicable data processing and security terms as from the Terms Effective Date (as defined below). These Terms supplement the Agreement.

1. Introduction

These Terms reflect the parties' agreement with respect to the terms governing the processing and security of Customer Personal Data under the Agreement.

2. Definitions

2.1 Capitalized terms used but not defined in these Terms have the meanings set out in the Agreement. In these Terms, unless stated otherwise:

Account has the meaning given in the Agreement or, if no such meaning is given, means Customer's account for the Services.

Additional Product means a product, service or application provided by Velostrata or Google or a third party that: (a) is not part of the Services; and (b) is accessible for use within the user interface of the Services or is otherwise integrated with the Services.

Admin Console means the online console(s) and/or tool(s) provided by Velostrata or Google Cloud Computing Services, as applicable.

Affiliate has the meaning given in the Agreement or, if not such meaning is given, means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party.

Customer Data means data provided by or on behalf of Customer via the Services under the Account.

Customer Personal Data means the personal data, if any, contained within the Customer Data.

Data Incident means a breach of Velostrata's security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data on systems managed by or otherwise controlled by Velostrata. "Data Incidents" will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

Data Protection Legislation means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).

EEA means the European Economic Area.

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.

Model Contract Clauses or MCCs mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR and incorporated and attached as Appendix 2 to this Agreement.

Infrastructure Provider has the meaning given in Section 5.4 (Infrastructure Provider).

Notification Email Address means the email address(es) provided by Customer to receive certain notifications.

Security Documentation means all documents and information made available by Velostrata under Section 7.5.1 (Reviews of Security Documentation).

Security Measures has the meaning given in Section 7.1.1 (Velostrata's Security Measures).

Subprocessors means third parties authorized under these Terms to have logical access to and process Customer Personal Data in order to provide parts of the Services.

Term means the period from the Terms Effective Date until the end of Velostrata's provision of the Services, including, if applicable, any period during which provision of the Services may be suspended and any post-termination period during which Velostrata may continue providing the Services for transitional purposes.

Terms Effective Date means the date on which Customer agreed to these Terms.

Third Party Subprocessors has the meaning given in Section 11.1 (Consent to Subprocessor Engagement).

Velostrata's Third Party Auditor means a Velostrata-appointed, qualified and independent third party auditor, whose then-current identity Velostrata will disclose to Customer.

2.2 The terms "personal data", "data subject", "processing", "controller", "processor" and "supervisory authority" as used in these Terms have the meanings given in the GDPR.

3. Duration of these Terms

These Terms will take effect on the Terms Effective Date and, notwithstanding expiry of the Term, will remain in effect until, and automatically expire upon, deletion of all Customer Personal Data by Velostrata as described in these Terms.

4. Scope of Data Protection Legislation

4.1 Application of European Legislation. The parties acknowledge and agree that the European Data Protection Legislation will apply to the processing of Customer Personal Data if, for example:

  • (a) the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA; and/or
  • (b) the Customer Personal Data is personal data relating to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.

4.2 Application of Non-European Legislation. The parties acknowledge and agree that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.

4.3 Application of Terms. Except to the extent these Terms state otherwise, these Terms will apply irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies to the processing of Customer Personal Data.

5. Processing of Data

5.1 Roles and Regulatory Compliance; Authorization.

5.1.1 Processor and Controller Responsibilities. The parties acknowledge and agree that:

  • (a) the subject matter and details of the processing are described in Appendix 1;
  • (b) Velostrata is a processor of that Customer Personal Data under the Data Protection Legislation;
  • (c) Customer is a controller or processor, as applicable, of that Customer Personal Data under Data Protection Legislation; and
  • (d) each party will comply with the obligations applicable to it under the Data Protection Legislation with respect to the processing of that Customer Personal Data.

5.1.2 Authorization by Third Party Controller. If Customer is a processor, Customer warrants to Velostrata that Customer's instructions and actions with respect to that Customer Personal Data, including its appointment of Velostrata as another processor, have been authorized by the relevant controller.

5.2 Scope of Processing.

5.2.1 Customer's Instructions. By entering into these Terms, Customer instructs Velostrata to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as further specified via Customer's use of the Services (including the Admin Console and other functionality of the Services); (c) as documented in the form of the Agreement, including these Terms; and (d) as further documented in any other written instructions given by Customer and acknowledged by Velostrata as constituting instructions for purposes of these Terms.

5.2.2 Velostrata's Compliance with Instructions. Velostrata will comply with the instructions described in Section 5.2.1 (Customer's Instructions) (including with regard to data transfers) unless EU or EU Member State law to which Velostrata is subject requires other processing of Customer Personal Data by Velostrata, in which case Velostrata will inform Customer (unless that law prohibits Velostrata from doing so on important grounds of public interest) via the Notification Email Address or Admin Console.

5.3 Additional Products. If Customer uses an Additional Product, the Services may allow that Additional Product to access Customer Personal Data as required for the interoperation of the Additional Product with the Services. For clarity, these Terms do not apply to the processing of personal data in connection with the provision of any Additional Product used by Customer, including personal data transmitted to or from that Additional Product.

5.4 Infrastructure Provider. Customer authorizes the engagement of Amazon Web Services, Inc. ("Infrastructure Provider") to provide underlying infrastructure services in the provision of the Services. Infrastructure Provider's role includes processing Customer Personal Data but Infrastructure Provider will not be a Third Party Subprocessor for the purposes of these Terms.

6. Data Deletion

6.1 Deletion by Customer. Velostrata will enable Customer to delete Customer Personal Data during the Term in a manner consistent with the functionality of the Services. If Customer uses the Services to delete any Customer Personal Data during the Term and that Customer Personal Data cannot be recovered by Customer, this use will constitute an instruction to Velostrata to delete the relevant Customer Personal Data from Velostrata's systems in accordance with applicable law. Velostrata will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.

6.2 Deletion on Termination. On expiry of the Term, Customer instructs Velostrata to delete all Customer Personal Data (including existing copies) from Velostrata's systems in accordance with applicable law. Velostrata will, after a recovery period of up to 30 days following such expiry, comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage. Without prejudice to Section 9.1 (Access; Rectification; Restricted Processing; Portability), Customer acknowledges and agrees that Customer will be responsible for exporting, before the Term expires, any Customer Personal Data it wishes to retain afterwards.

7. Data Security

7.1 Velostrata's Security Measures, Controls and Assistance.

7.1.1 Velostrata's Security Measures. Velostrata will implement and maintain appropriate technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (the "Security Measures"). Velostrata may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

7.1.2 Security Compliance by Velostrata Staff. Velostrata will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subprocessors to the extent applicable to their scope of performance, including ensuring that all persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.1.3 Intentionally omitted.

7.1.4 Velostrata's Security Assistance. Customer agrees that Velostrata will (taking into account the nature of the processing of Customer Personal Data and the information available to Velostrata) assist Customer in ensuring compliance with any of Customer's obligations in respect of security of personal data and personal data breaches, including if applicable Customer's obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by:

  • implementing and maintaining the Security Measures in accordance with Section 7.1.1 (Velostrata's Security Measures);

  • complying with the terms of Section 7.2 (Data Incidents); and

  • providing Customer with the Security Documentation in accordance with Section 7.5.1 (Reviews of Security Documentation) and the information contained in the Agreement including these Terms.

7.2 Data Incidents

7.2.1 Incident Notification. If Velostrata becomes aware of a Data Incident, Velostrata will: (a) notify Customer of the Data Incident promptly and without undue delay after becoming aware of the Data Incident; and (b) promptly take reasonable steps to minimize harm and secure Customer Personal Data.

7.2.2 Details of Data Incident. Notifications made pursuant to this section will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps Velostrata recommends Customer take to address the Data Incident.

7.2.3 Delivery of Notification. Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at Velostrata's discretion, by direct communication (for example, by phone call or an in-person meeting). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.

7.2.4 No Assessment of Customer Personal Data by Velostrata. Velostrata will not assess the contents of Customer Personal Data in order to identify information subject to any specific legal requirements. Without prejudice to Velostrata's obligations under this Section 7.2 (Data Incidents), Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Data Incident(s).

7.2.5 No Acknowledgement of Fault by Velostrata. Velostrata's notification of or response to a Data Incident under this Section 7.2 (Data Incidents) will not be construed as an acknowledgement by Velostrata of any fault or liability with respect to the Data Incident.

7.3 Customer's Security Responsibilities and Assessment.

7.3.1 Customer's Security Responsibilities. Customer agrees that, without prejudice to Velostrata's obligations under Section 7.1 (Velostrata's Security Measures, Controls and Assistance) and Section 7.2 (Data Incidents):

  • (a) Customer is solely responsible for its use of the Services, including:
    • making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
    • securing the account authentication credentials, systems and devices Customer uses to access the Services;
    • backing up its Customer Personal Data; and
  • (b) Velostrata has no obligation to protect copies of Customer Personal Data that Customer elects to store or transfer outside of Velostrata's and its Subprocessors' systems (for example, offline or on-premise storage).

7.3.2 Customer's Security Assessment.

  • (a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures, and Velostrata's commitments under this Section 7 (Data Security) will meet Customer's needs, including with respect to any security obligations of Customer under the Data Protection Legislation.
  • (b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Velostrata as set out in Section 7.1.1 (Velostrata's Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.

7.4 Intentionally omitted.

7.5 Reviews and Audits of Compliance.

7.5.1 Reviews of Security Documentation. Velostrata will make available for review by Customer the then-current information contained in the Agreement (including these Terms) as well as a summary of its then-current penetration test results (together, the "Security Documentation") following a request by Customer in accordance with Section 7.5.3(a), in order to demonstrate compliance by Velostrata with its obligations under these Terms.

7.5.2 Customer's Audit Rights.

  • (a) If the Data Protection Legislation applies to the processing of Customer Personal Data, Velostrata will allow Customer or an independent auditor appointed by Customer to conduct audits (including inspections) to verify Velostrata's compliance with its obligations under these Terms in accordance with Section 7.5.3 (Additional Business Terms for Reviews and Audits). Velostrata will contribute to such audits as described in this Section 7.5 (Reviews and Audits of Compliance).
  • (b) Customer may also verify Velostrata's compliance with its obligations under these Terms by reviewing the Security Documentation.

7.5.3 Additional Business Terms for Reviews and Audits.

  • (a) Customer must send any requests for reviews of the Security Documentation under Section 7.5.1 or audits under Section 7.5.2(a) or 7.5.2(b) via support@velostrata.com or through https://velostrata.com/support/.
  • (b) Following receipt by Velostrata of a request under Section 7.5.3(a), Velostrata and Customer will discuss and agree in advance on: (i) the reasonable date(s) of and security and confidentiality controls applicable to any review of the Security Documentation under Section 7.5.1; and (ii) the reasonable start date, scope and duration of and security and confidentiality controls applicable to any audit under Section 7.5.2(a) or 7.5.2(b).
  • (c) Velostrata may charge a fee (based on Velostrata's reasonable costs) for any review of the Security Documentation under Section 7.5.1 and/or audit under Section 7.5.2(a) or 7.5.2(b). Velostrata will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such review or audit. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
  • (d) Velostrata may object in writing to an auditor appointed by Customer to conduct any audit under Section 7.5.2(a) or 7.5.2(b) if the auditor is, in Velostrata's reasonable opinion, not suitably qualified or independent, a competitor of Velostrata or its Affiliates, or otherwise manifestly unsuitable. Any such objection by Velostrata will require Customer to appoint another auditor or conduct the audit itself.
  • (e) Nothing in these Terms will require Velostrata either to disclose to Customer or its third party auditor, or to allow Customer or its third party auditor to access:
    • any data of any other customer of Velostrata or its Affiliates;
    • Velostrata or its Affiliates' internal accounting or financial information;
    • any trade secret of Velostrata or its Affiliates;
    • any information that, in Velostrata's reasonable opinion, could: (A) compromise the security of any of Velostrata or its Affiliates' systems or premises; or (B) cause Velostrata or its Affiliates to breach obligations under the Data Protection Legislation or its security and/or privacy obligations to Customer or any third party; or
    • any information that Customer or its third party auditor seeks to access for any reason other than the good faith fulfilment of Customer's obligations under the Data Protection Legislation.

7.5.4 No Modification of MCCs. Nothing in this Section 7.5 (Reviews and Audits of Compliance) varies or modifies any rights or obligations of Customer or Velostrata under any Model Contract Clauses entered into as described in Section 10.2 (Transfers of Data Out of the EEA).

8. Impact Assessments and Consultations.

Customer agrees that Velostrata will (taking into account the nature of the processing and the information available to Velostrata) assist Customer in ensuring compliance with any obligations of Customer in respect of data protection impact assessments and prior consultation, including if applicable Customer's obligations pursuant to Articles 35 and 36 of the GDPR, by:

  • providing the Security Documentation in accordance with Section 7.5.1 (Reviews of Security Documentation); and

  • providing the information contained in the Agreement including these Terms.

9. Data Subject Rights; Data Export

9.1 Access; Rectification; Restricted Processing; Portability. During the Term, Velostrata will, in a manner consistent with the functionality of the Services, enable Customer to access, rectify and restrict processing of Customer Personal Data, including via the deletion functionality provided by Velostrata as described in Section 6.1 (Deletion by Customer), and to export Customer Personal Data.

9.2 Data Subject Requests

9.2.1 Customer's Responsibility for Requests. During the Term, if Velostrata receives any request from a data subject in relation to Customer Personal Data, Velostrata will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Services.

9.2.2 Velostrata's Data Subject Request Assistance. Customer agrees that Velostrata will (taking into account the nature of the processing of Customer Personal Data) assist Customer in fulfilling any obligation to respond to requests by data subjects, including if applicable Customer's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR, by complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer's Responsibility for Requests).

10. Data Transfers

10.1 Data Storage and Processing Facilities. Velostrata may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process the relevant Customer Personal Data anywhere Velostrata or its Subprocessors, or any Infrastructure Provider maintains facilities.

10.2 Transfers of Data Out of the EEA. The Model Contract Clauses are incorporated into this Agreement and, to the extent the European Data Protection Legislation applies to the transfers of Customer Personal Data out of the EEA("Transferred Personal Data"), the MCCs apply to such transfer, Velostrata will comply with the MCCs as the data importer of the Transferred Personal Data with Customer as the data exporter of such data, and will ensure the transfers are made in accordance with such MCCs.

10.2.1 Intentionally omitted.

10.2.2 Customer's Transfer Obligations. If Velostrata reasonably requests that Customer take any action (which may include execution of documents) strictly required to give full effect to use the MCCs incorporated by reference to this Agreement , Customer will do so.

11. Subprocessors

11.1 Consent to Subprocessor Engagement. Customer specifically authorizes the engagement as Subprocessors of: (a) those entities engaged as of the Terms Effective Date (made available as specified in Section 11.2 (Information about Subprocessors); and (b) all other Velostrata Affiliates from time to time, including Google LLC. In addition, Customer generally authorizes the engagement as Subprocessors of any other third parties ("New Third Party Subprocessors"). If Customer has entered into Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer's prior written consent to the subcontracting by Velostrata of the processing of Customer Data if such consent is required under the Model Contract Clause.

11.2 Information about Subprocessors. Information about Subprocessors, including their functions and locations, will be provided upon request (as may be updated by Velostrata from time to time in accordance with these Terms).

11.3 Requirements for Subprocessor Engagement. When engaging any Subprocessor, Velostrata will:

  • (a) ensure via contract that:
    • the Subprocessor only accesses and uses Customer Personal Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including these Terms); and
    • if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in these Terms, are imposed on the Subprocessor; and
  • (b) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

11.4 Opportunity to Object to Subprocessor Changes.

  • (a) When any New Third Party Subprocessor is engaged during the Term, Velostrata will inform Customer of the engagement (including the name and location of the relevant subprocessor and the activities it will perform) either by sending an email to the Notification Email Address or via the Admin Console.
  • (b) Customer may object to any New Third Party Subprocessor by terminating the Agreement immediately upon written notice to Velostrata, on condition that Customer provides such notice within 90 days of being informed of the engagement of such New Third Party Subprocessor as described in Section 11.4(a). This termination right is Customer's sole and exclusive remedy if Customer objects to any New Third Party Subprocessor.

12. Velostrata Data Protection Team; Processing Records

12.1 Velostrata's Representative. Customer may contact a Velostrata representative in relation to the exercise of its rights under these Terms via support@velostrata.com or through the methods described at https://velostrata.com/support/ (and/or via such other means as Velostrata may provide from time to time).

12.2 Velostrata's Processing Records. Customer acknowledges that Velostrata is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Velostrata is acting and, where applicable, of such processor's or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly Customer will, where requested, provide such information to Velostrata via the Admin Console or other means provided by Velostrata, and will use the Admin Console or such other means to ensure that all information provided is kept accurate and up-to-date.

13. Liability

13.1 If the Agreement is governed by the laws of:

(a) a state of the United States of America, then, notwithstanding anything else in the Agreement, the total liability of either party towards the other party under or in connection with these Terms will be limited to the maximum monetary or payment-based amount at which that party's liability is capped under the Agreement (for clarity, any exclusion of indemnification claims from the Agreement's limitation of liability will not apply to indemnification claims under the Agreement relating to the Data Protection Legislation); or

(b) a jurisdiction that is not a state of the United States of America, then the liability of the parties under or in connection with these Terms will be subject to the exclusions and limitations of liability in the Agreement.

14. Effect of these Terms

Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between these Terms and the remaining terms of the Agreement, these Terms will govern.

15. Changes to these Terms

15.1 Changes to URLs. From time to time, Velostrata may change any URL referenced in these Terms and the content at any such URL.

15.2 Changes to these Terms. Velostrata may change these Terms if the change:

(a) is expressly permitted by these Terms, including as described in Section 15.1 (Changes to URLs);

(b) reflects a change in the name or form of a legal entity;

(c) is required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency; or

(d) does not: (i) result in a degradation of the overall security of the Services; (ii) expand the scope of, or remove any restrictions on, Velostrata's processing of Customer Personal Data, as described in Section 5.2.2 (Velostrata's Compliance with Instructions); and (iii) otherwise have a material adverse impact on Customer's rights under these Terms, as reasonably determined by Velostrata.

15.3 Notification of Changes. If Velostrata intends to change these Terms under Section 15.2(c) or (d), Velostrata will inform Customer at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect by either: (a) sending an email to the Notification Email Address; or (b) alerting Customer via the Admin Console. If Customer objects to any such change, Customer may terminate the Agreement by giving written notice to Velostrata within 90 days of being informed by Velostrata of the change.

Appendix 1 to the Velostrata Data Processing and Security Terms: Subject Matter and Details of the Data Processing

Subject Matter

Velostrata's provision of the Services to Customer.

Duration of the Processing

The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by Velostrata in accordance with these Terms.

Nature and Purpose of the Processing

Velostrata will process Customer Personal Data for the purposes set forth in Section 5.2.1 of these Terms.

Categories of Data

Data relating to individuals provided to Velostrata via the Services, by (or at the direction of) Customer.

Data Subjects

Data subjects include the individuals about whom data is provided to Velostrata via the Services by (or at the direction of) Customer.

Appendix 2 to the Velostrata Data Processing and Security Terms: EU Model Contract Clauses.

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 non-Velostrata legal entity accepting the Clauses (the "Data Exporter")

And

Velostrata Ltd., c/o Google Israel, 98 Yigal Alon street, Tel Aviv 6789141, Israel

(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 Attachment 1.

The Clauses (including Attachments 1 and 2) are effective from the date the Data Exporter has both reviewed and accepted the Velostrata End User Service Agreement with Data Processing and Security Terms (collectively the "Services Agreement") and these Clauses which are incorporated by reference to the Service Agreement. In this document: (a) "Velostrata End User Service Agreement" means an agreement under which the Data Importer, Velostrata Ltd., or any other entity that directly or indirectly controls, is controlled by, or is under common control with the Data Importer, has agreed to provide Velostrata services and products and related support to Data Exporter (whether as a customer, reseller or supplier); and (b) "Data Processing and Security Terms" means terms incorporated by reference into the Velostrata End User Service Agreement or otherwise subsequently agreed between the parties to that agreement that set out certain terms in relation to the protection and processing of personal data.

If you are accepting on behalf of the Data Exporter, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand the Clauses; and (iii) you agree, on behalf of the party that you represent, to the Clauses. If you do not have the legal authority to bind the Data Exporter, please do not accept these terms. The Clauses shall automatically expire on the termination or expiry of the Data Processing and Security Terms. The parties agree that where Data Exporter has been presented with these Clauses and accepted these terms electronically, such acceptance shall constitute execution of the entirety of the Clauses by both parties, subject to the effective date described above.

Clause 1

Definitions

For the purposes of the Clauses:

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

(b) 'the Data Exporter' means the controller who transfers the personal data;

(c) 'the Data Importer' means the processor who agrees to receive from the Data Exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25 (1) of Directive 95/46/EC;

(d) 'the Subprocessor' means any processor engaged by the Data Importer or by any other subprocessor of the Data Importer who agrees to receive from the Data Importer or from any other subprocessor of the Data Importer personal data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the Data Exporter is established;

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

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 Attachment 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The Data Subject can enforce against the Data Exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

  2. The Data Subject can enforce against the Data Importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the Data Exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the Data Exporter, in which case the Data Subject can enforce them against such entity.

  3. The Data Subject can enforce against the Subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the Data Subject can enforce them against such entity. Such third-party liability of the Subprocessor shall be limited to its own processing operations under the Clauses.

  4. The parties do not object to a Data Subject being represented by an association or other body if the Data Subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the Data Exporter

The Data Exporter agrees and warrants:

(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 Attachment 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 Attachment 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 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 Attachment 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 Attachment 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 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. 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 or 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:

    (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.

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

Sub-Processing

  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 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.

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.

Attachment 1

to the Standard Contractual Clauses

This Attachment forms part of the Clauses

Data Exporter

The Data Exporter is the non-Velostrata legal entity that is a party to the Clauses.

Data Importer

The Data Importer is Velostrata, Ltd.

Data Subjects

The personal data transferred concern the following categories of data subjects: Data subjects include the individuals about whom data is provided to Data Importer via the Services (as defined in the Services Agreement) by (or at the direction of) Data Exporter.

Categories of data

The personal data transferred concern the following categories of data: Data relating to individuals provided to Data Importer via the Services by (or at the direction of) Data Exporter.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data: Data relating to individuals provided to Data Importer via the Services by (or at the direction of) Data Exporter.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

  • Scope of Processing. The Clauses reflect the parties' agreement with respect to the processing and transfer of personal data specified in this Appendix pursuant to the provision of the Services. Personal data may be processed only to comply with Instructions (as defined in the Data Processing and Security Terms). The Data Exporter instructs the Data Importer to process personal data in countries in which the Data Importer or its Subprocessors maintain facilities.

  • Term of Data Processing. Data processing will be for the period specified in the Data Processing and Security Terms. Such period will automatically terminate upon the deletion by the Data Importer of all data as described in the Data Processing and Security Terms.

  • Data Deletion. During the term of the Services Agreement, the Data Importer will provide the Data Exporter with the ability to delete the Data Exporter's personal data from the Services in accordance with the Services Agreement. After termination or expiry of the Services Agreement, the Data Importer will delete the Data Exporter's personal data in accordance with the Data Processing and Security Terms.

  • Access to Data. During the term of the Services Agreement, the Data Importer will provide the Data Exporter with access to, and the ability to rectify, restrict processing of and export the Data Exporter's personal data from the Services in accordance with the Services Agreement.

  • The Data Importer may engage Subprocessors to provide parts of the Services and Support (as defined in the Services Agreement). The Data Importer will ensure Subprocessors only access and use the Data Exporter's personal data to provide the Services and Support and not for any other purpose.

Attachment 2

to the Standard Contractual Clauses

This Attachment forms part of the Clauses. Description of the technical and organisational security measures implemented by the Data Importer in accordance with Clauses 4(c) and 5(c) (or document/legislation attached): The Data Importer currently implements and maintains appropriate technical and organizational measures to protect Data Exporter's personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (the "Security Measures"). The Data Importer may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

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