LOFELT DATA PROCESSING ADDENDUM
This Data Processing Addendum (hereinafter the “DPA”) forms a contract between Lofelt GmbH, with registered office at Oppelner Str. 27, 10997 Berlin, Germany, registered at Amtsgericht Berlin-Charlottenburg, HRB 159157 B (hereinafter referred to as “We”, “Us” or “Our”) and Our clients, users and their heirs, agents, successors and assigns (hereinafter singularly and collectively referred to as “You” or “Your”), with reference to the Lofelt Terms of Service Agreement lofelt.com/tos (hereinafter the “ToS”) entered between You and Us, of which this DPA constitutes a legal and binding agreement and an integral part of the ToS and applies where We are Processors of Personal Data on Your behalf.
All terms with initial capital letters used herein shall have the meanings ascribed to them in the ToS, unless specifically defined herein.
SECT.1 - SCOPE OF THIS DPA
The scope of this DPA is to detail the terms and conditions according to which, during the performance of Our Services, We will Process on Your behalf Personal Data, as provided in Sect. 7.4 of the ToS.
SECT.2 - DEFINITIONS
In addition to the definitions in the ToS, the following definitions apply to the following capitalized terms in this DPA, provided that a word defined in or importing the singular number has the same meaning when used in the plural number, and vice versa:
2.1 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
2.2 “User Data” means any Personal Data that We process on Your behalf via the Services, as more particularly described in this DPA.
2.3 “Data Subject” means each person whose Personal Data are Processed for the Purpose, in the context of the provision of Our Services.
2.4 “Data Protection Law” means all data protection laws and regulations applicable to a Party’s Processing of Personal Data under the ToS including, where applicable, the European General Data Protection Regulation no. 2016/679.
2.5 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.
2.6 “Processing” or “Process” or “Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
2.7 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
2.8 “Purpose” means the provision of the Services and the associated Processing of Personal Data, as well as Your instruction provided Us during the use of the Services and/or the execution of the ToS and/or this DPA.
2.9 “Standard Contractual Clauses” or “SSCs” means the contractual clauses for the transfer of Personal Data to processors in third countries, approved by the European Commission from time to time, in the form set out in Exhibit A to this DPA or as may be updated and approved by the European Commission from time to time.
2.10 “Sub-Processor” means the entity engaged by Us to Process Personal Data on our behalf and under our instructions.
SECT.3 - SUBJECT OF THIS DPA
3.1 Appointment. You appoint Us as Processor of User Data in the context of the provision of the Services specified in the ToS and in connection with the Purpose.
3.2 Details of Processing activities. The details of the Processing activities under this DPA are specified below:
3.2.a Data Subjects. Data Subjects are those individuals referred to in Sect. 2.2 above, to whom Personal Data relates to.
3.2.b Categories of Data. Categories of Data refers to Personal Data submitted and Processed in connection with use of Our Services.
3.2.c Subject-matter and nature of the Processing. The Personal Data Processed will be subject to the Processing activities required for the provision of the Services, as specified in the ToS and in this DPA.
3.2.d Duration of Processing. Personal Data will be processed for the duration of the ToS.
SECT.4 - OUR OBLIGATIONS
4.1 Purpose and Your instructions. We shall only Process, on Your behalf, User Data according to Your instruction and exclusively for the Purpose.
4.3 Personal Data Breach notification. We will notify You, without undue delay, after becoming aware of a Personal Data Breach, taking reasonable steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach. In particular, at the latest within 72 (seventy two) hours upon the technical discovery of such breach of User Data, We will provide You with at least the following information: (i) the nature of the Personal Data Breach including, where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of User Data records concerned; (ii) the likely consequences of the Personal Data Breach; (iii) the measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
4.4 Confidentiality. We ensure that all persons authorized to Process the User Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4.5 Assistance and cooperation. We will promptly inform You if, in Our opinion, Your instructions infringe the relevant Data Protection Law, or if We are unable to comply with Your instructions. At Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in complying with data security, data breach notifications, data protection impact assessments, and prior consultations with supervisory authorities requirements under the relevant Data Protection Law, taking into account the nature of the Processing and the information available to Us.
4.6 Data Subjects’ rights. We shall forward to You of all the requests coming from Data Subjects concerning the exercising of their rights under the applicable Data Protection Law. At Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in the consequent actions required, as provided by the applicable Data Protection Law. You understand and agree that certain requests concerning exercising of Data Subjects’ rights may require Us to directly reply to the same Data Subjects.
4.7 Anonymization or deletion of the Personal Data. At Your request or, in any case, after the termination of the ToS, We shall anonymise or, if anonymisation is not technically feasible, remove all User Data in Our possession in a secure manner. In particular, following the termination of the ToS, User Data linked to Your account will be retained for a period of six (6) months from such termination within which You may contact Us to export such Data; beyond such term, We are authorized to anonymize or delete all User Data in the normal course of operation, unless We are required by any applicable Law to retain some or all of such User Data (which in any case shall be securely protected from any further Processing except to the extent required by such Law).
4.8 Sub-Processors. You give Us a general authorization to engage Sub-Processors to Process User Data for the Purpose. To such purpose, We represent and warrant that Our Sub-Processors shall provide Us sufficient guarantees to implement appropriate technical and organizational measures to ensure that their sub-Processing will meet requirements under the applicable Data Protection Law, to the extent applicable to the nature of the services provided by such Sub-Processors. The list of Our Sub-Processors is available at lofelt.com/infrastructure-providers-and-subprocessors and it will be updated in case of addition or replacement of Sub-Processors.
4.9 Personal Data international transfers. You acknowledge that We may transfer and process User Data anywhere in the world where We or Our Sub-processors maintain data Processing operations. We shall at all times ensure that such transfers are made in compliance with the requirements of the relevant Data Protection Law. In particular, for transfers of Personal Data to Us for Our processing in a jurisdiction other than a jurisdiction in the European Union, the European Economic Area, or the European Commission-approved countries providing “adequate” data protection, We agree to use the form of the Standard Contractual Clauses attached hereto. In case We are unable or it becomes unable to comply with these requirements, then Personal Data will be transferred only subject to prior written consent of the Data Subjects.
SECT.5 - YOUR OBLIGATIONS
5.1 You represent and warrant that, in relation to the Processing of Personal Data for the Purposes in the context of the Services, You act as a Controller and, therefore:
5.1.a You shall comply with any Data Protection Law when Process Personal Data, providing Us with lawful Processing instructions;
5.1.b Data Subjects have been previously informed of Our Processing of their Personal Data, as required by any applicable Data Protection Law;
5.1.c There is a valid legal ground for Our Processing of Personal Data, under the applicable Data Protection Law;
5.1.d You shall not disclose Us (and shall not permit any Data Subject to disclose Us) any special categories of Personal Data (personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health or data concerning sex life or sexual orientation);
5.1.e You shall comply with Data Subjects’ requests to exercise their rights of access, rectification, erasure, data portability, restriction of Processing, and objection to the Processing, as well as their rights related to automated decision-making;
5.1.f You shall have the sole responsibility for the Personal Data accuracy, quality and the related proportionality and data retention principles;
5.1.g You shall implement appropriate technical and organizational measures to ensure, and to be able to demonstrate, that the Processing of Personal Data is performed in accordance with the applicable Data Protection Law; and
5.1.h You will cooperate with Us to fulfill our respective data protection compliance obligations in accordance with the applicable Data Protection Law (in particular, without limiting the foregoing, You shall forward Us any Data Subjects’ request regarding the Processing of their data, such as, requests of erasure, update, restriction, etc.).
SECT.6 - LIABILITY
6.1 General. Each Party agrees that it will be liable to Data Subjects for the entire damage resulting from a violation of the applicable Data Protection Law. If one Party paid full compensation for the damage suffered, it is entitled to claim back from the other Party that part of compensation corresponding to such Party’s part of responsibility for the damage. To such purpose, You agree to be liable to Data Subjects for the entire damage resulting from a violation of the applicable Data Protection Law with regard to Processing of Personal Data for which You are a Controller, and that We will only be liable to Data Subjects for the entire damage resulting from a violation of the obligations of the applicable Data Protection Law directed to Us or where We acted outside of, or contrary to, Your lawful instructions. We will be exempt from liability if We prove that We are not in any way responsible for the event giving rise to the damage.
6.2 Limitation of liability. In any case, to the maximum extent provided by the Law, Sects. 11.2 (Limitation of liability), 11.3 (Remedies) and 11.4 (Mandatory requirements) of ToS shall apply to any Lofelt’s liability arising from, or in any way connected to, its obligation under this DPA.
SECT.7 - TERM AND TERMINATION
7.1 Term. This DPA shall commence on the first day the ToS are effective and shall continue in full force and effect until the termination of the same ToS.
7.2 Termination in case of breach. This DPA may be immediately terminated by a Party if the other Party breaches any material obligation thereof and fails to remedy such breach within 10 (ten) days after receiving a written notice from the non-defaulting Party requiring it to remedy the breach.
STANDARD CONTRACTUAL CLAUSES.
... (the “data exporter”)
... (the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1 - Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1); (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 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; (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 Appendix 1 which forms an integral part of the Clauses.
Clause 3 - Third-party beneficiary clause
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.
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.
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.
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 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).
Clause 5 - Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred; (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorised access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; (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; (j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6 - Liability
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.
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.
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.
Clause 7 - Mediation and jurisdiction
- 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.
- 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.
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.
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).
Clause 9 - Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely ....
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
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 (3). 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.
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.
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, namely …
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
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.
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 This Appendix forms part of the Clauses and must be completed and signed by the parties.
Data exporter The data exporter is ...
Data importer The data importer is ...
Data subjects Data Subjects are ...
Categories of data Categories of data are ...
Processing operations The personal data transferred will be subject to the following processing activities ....
Appendix 2 to the Standard Contractual Clauses This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): The technical and organisational security measures implemented by the data importer are as described at ...