Snapshot 49879
Normalized text
Scripts and page chrome removed; this is what change detection compares.
DATA PROCESSING ADDENDUM
Except where otherwise negotiated in writing, this Data Processing Addendum (“DPA”) forms part of the Terms
of Service found at https://www.newmode.net/terms-and-conditions or other written or electronic agreement
between New Mode Consulting Inc. (Company) and Customer for the use of Company’s online Service for the
Processing of Customer Data, including Personal Data (each such agreement referred to herein as the
“Agreement”).
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions
set out below shall be added as an addendum to the Agreement to govern processing by Company of any
Customer Data that is subject to the Data Protection Laws, as defined herein. Except where the context
requires otherwise, references in this DPA to the Agreement are to the Agreement as amended by, and
including, this DPA. All capitalized terms have the same meaning as set forth in the Agreement. Except as
modified below, the terms of the Agreement shall remain in full force and effect. In the event of a conflict
between this DPA and the Agreement, the terms of this DPA shall control.Terms and Conditions
1. DEFINITIONS
1.1. “Company” means New Mode Consulting Inc., d.b.a. “New/Mode”, a BC corporation with its
principal place of business located at 220-312 Main Street, Vancouver, BC Canada V6A 2T2.
1.2. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common
control or ownership with Company, where control is defined as the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of an entity, whether
through ownership of voting securities, by contract or otherwise.
1.3. “Customer” means the legal entity or individual who entered into the Agreement with Company.
1.4. “Customer Data” means all Personal Data processed by Company or its Sub-processors pursuant
to or in connection with the Agreement.
1.5. “Data Protection Laws” means (i) prior to 25 May 2018, Directive 95/46/EC of the European
Parliament and of the Council on the protection of individuals with regard to the processing of
personal data and on the free movement of such data, including any applicable national
implementations of it; and (ii) on and after 25 May 2018, Regulation 2016/679 of the European
Parliament and of the Council 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 (as
amended, replaced or superseded) (“GDPR”).
1.6. “Data Security Documentation” means Company’s data security policies and procedures, as
currently existing and as amended or implemented hereafter, which Company makes available to its
Customers.
1.7. “Process” or “Processing” means any operation or set of operations which is performed upon
Personal Data, whether or not by automatic 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 or blocking,
erasure, or destruction.
1.8. “Service” means Company’s services as offered through its website at newmode.net or any other
Affiliate domain.
1.9. “Standard Contractual Clauses” means the European Commission’s Standard Contractual
Clauses attached hereto as Attachment 1.
1.10. “Sub-processor” means any person who has entered into an agreement with Company, including
third parties, such as Company’s Affiliates for the purpose of carrying out processing activities on
behalf of the Controller and on which is imposed the same data protection obligations as set out in
this DPA.
1.11. The terms, “Commission,” “Controller,” “Data Subject,” “Member State,” “Personal Data,”
“Personal Data Breach,” “Processor,” and “Supervisory Authority” shall have the same meaning
as in the GDPR, and their associated terms shall be construed accordingly.
2. SCOPE OF APPLICATION AND RESPONSIBILITIES
2.1. Data Controller and Processor Roles. The parties agree that Customer is the Data Controller and
Company is the Data Processor.
2.2. Processing of Personal Data by Customer. It is up to the Customer’s sole discretion to decide
what Personal Data is transferred as part of the Service provided by Company and Company has no
influence whatsoever over the selection of such Personal Data. The categories of Personal Data
which can be processed are listed in Attachment 2.
2.3. Company shall inform the Customer if it becomes aware or reasonably believes that Customer’s
Processing instructions violate any applicable Data Protection Law and notably the GDPR.
2.4. Customer shall acquire and, through its use of the Service, Process Personal Data in accordance
with the Data Protection Laws, including, but not limited to, providing Data Subjects with adequate
privacy notice, obtaining and maintaining required consents, notification to Data Subjects that
Personal Data will be made available to a third party (i.e., Company and its Sub-processors).
2.5. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability,
appropriateness, and legality of Personal Data, including the methods and consents Customer uses
to acquire Personal Data.
2
2.6. Processing of Personal Data by Company. Company shall only Process Personal Data in
accordance with the instructions provided to it by Customer, including with regard to transfers of
Personal Data to a third country or an international organization, unless required to do so by a
mandatory rule resulting from the applicable Data Protection Laws. In such a case, Company shall
inform the Customer of that legal requirement before processing, unless that law prohibits such
information on important grounds of public interest.
2.7. At all times Company shall process Personal Data as Confidential Information.
2.8. Customer authorizes Company to Process Personal Data in the following ways: (1) in accordance
with the Agreement, including, but not limited to, Attachment 2, (2) in accordance with processes
initiated by Customer and Customer’s users through the use of the Service, and (3) in accordance
with commercially reasonable instructions provided by Customer, where instructions are consistent
with the terms of the Agreement. The parties agree that an instruction shall be deemed to be given
where Company acts within the framework of the Agreement or this DPA.
2.9. Company shall not take any unilateral decisions about the Processing or use of the Personal Data or
the duration that the Personal Data will be stored, except pursuant to statutory provisions that
prescribe otherwise. Customer is responsible for determining and complying with data storage
duration limitations.
2.10. Company undertakes to notify Customer, without undue delay, of any modification or change which
may affect the Processing of Personal Data.
2.11. Ownership of Data. The ownership and control of Personal Data remains with Customer, and
Customer will at all times remain the Data Controller. Customer is responsible for compliance with its
obligations as Data Controller under the Data Protection Laws, in particular for justification of any
transmission of Personal Data to Company (including providing any required notices and obtaining
any required consents), and for its decisions concerning the Processing and use of the Personal
Data.
2.12. Use of Data by Company. With respect to Personal Data that has been de-identified, anonymized,
pseudonymized, masked and/or aggregated (referred to as “De-Identified Personal Data,” but for
Personal Data of European residents includes only Personal Data that has been anonymized in
accordance with GDPR rules), as well as data which is created, generated, organized, formatted,
derived, trained, ensembled, or based from or on De-Identified Personal Data, Company has the
right to (a) use all of the foregoing for its own internal business purposes, (b) modify the De-Identified
Personal Data, (c) aggregate or combine the De-Identified Personal Data with other data, (d)
disclose De-Identified Personal Data to third parties, (e) use the De-Identified Personal Data in
demonstrations of products and services to third parties, and (f) license, assign, convey and/or
transfer ownership of De-Identified Personal Data and any or all of Company’s rights thereto to third
parties.
3
2.13. Attachment 2 to this DPA sets out certain information regarding Company’s Processing of Customer
Personal Data as required by Article 28(3) of the GDPR. Company may make reasonable
amendments to Attachment 2 by written notice to Customer from time to time as Company
reasonably considers necessary to meet those requirements.
3. RIGHTS OF DATA SUBJECTS
3.1. Data Subject Requests. Where Company receives a Data Subject’s request related to his or her
rights to access, correct, or delete data controlled by Customer, to object or restrict the processing of
data by Customer, or to data portability of data controlled by Customer, Company shall not directly
respond to any such requests and shall refer such requests to Customer (where Customer is
identified by the Data Subject) and inform the Data Subject of such referral. Company shall use
commercially reasonable efforts to support Customer in taking the requested actions. The foregoing
shall apply only where Customer has so instructed Company in writing, and where Customer
reimburses Company for the cost and expenses incurred in providing such support (such
reimbursement as set forth in Section 8.c). Company shall only be held to a mere obligation of
means and Customer shall remain at all times responsible for fulfilling Customer’s obligation to
respond to Data Subjects’ request.
4. COMPANY PERSONNEL
4.1. Confidentiality. Company shall take reasonable steps designed to ensure that its personnel
engaged in Processing Personal Data do so under written confidentiality agreements, have received
the appropriate training to handle Personal Data, and are informed of the confidential nature of
Personal Data.
4.2. Limitation on Access. Company shall take reasonable steps designed to ensure that Company’s
access to Personal Data is limited to those people who meet the requirements under Section 4(a).
5. SUB-PROCESSORS
5.1. Appointment of Sub-Processors. Customer grants a general authorization to Company and its
Affiliates to engage or replace Sub-processors to perform parts of the Service, provided that the
conditions specified below are respected.
5.2. Sub-Processor’s agreement. Prior to receiving any Personal Data of Customer, Sub-processors
will be under written agreements that are substantially similar in scope, where applicable, to this
DPA and the Standard Contractual Clauses. Company and its Affiliates shall ensure that each
Sub-processor performs the obligations under Sections 2 (compliance with applicable laws), 6
(security measures), 3 (data subject rights), 6.1 (data breach), 9 (data protection impact
assessment), and 8.3 (audit rights), as they apply to Processing of Customer Personal Data carried
out by that Sub-processor, as if it were party to this Addendum in place of Company. Where
Company’s Sub-processors fail to fulfil their data protection obligations, Company will remain fully
responsible and liable for the performance of its obligations and of those Sub-processors’ obligations
pursuant to this DPA.
4
5.3. List of Current Sub-Processors. Company and each Company Affiliate may continue to use those
Sub-processors already engaged by Company or any Company Affiliate as of the date of this
Addendum, subject to Company and each Company Affiliate in each case as soon as practicable
meeting the obligations set out in section 5.2.
5.4. Notice and Objection Right to New Sub-Processors. Company will provide Customer with notice
of any new Sub-processor, at https://www.newmode.net/privacy. If Customer objects in writing within
ten (10) days of receipt of such notice to a particular Sub-processor Processing Personal Data (with
specific details of Customer’s reasons for objection), and that objection is not unreasonable in
Company’s reasonable determination, Company will use commercially reasonable efforts to provide
an alternative method for provision of the Service to Customer, without Processing Personal Data
using the new Sub-processor. If no objection is received within such ten (10) day period, such
Sub-Processor shall be deemed approved. For example, Company may allow Customer to ‘turn off’
or ‘opt-out’ of certain features provided by a Sub-Processor. If Company is unable to make
reasonable changes to the Service within 60 days of Customer’s written objection, Customer may
terminate the Service.
5.5. Customer’s Processors. Company’s Service includes the possibility for Customers to integrate
their own APIs or those of third parties. Company is not responsible for the compliance of the
Processing carried out by such APIs with the applicable Data Protection Laws. Customer shall
remain at all times be responsible for the compliance of the Processing carried out by its own APIs
or those of third parties Customer has agreed to integrate in Company’s Service.
6. SECURITY
6.1. Protection of Personal Data. 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, Company shall, in relation to protection
of Customer Personal Data, maintain a data security policy, which incorporates technical,
administrative, and physical security measures designed to ensure the safety and integrity of
Personal Data, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
Customers may request a copy of Company’s Data Security Documentation, which Company will
provide under a confidentiality agreement. Company may revise, but not materially diminish the
standards set out in the Data Security Documentation during the Agreement.
6.2. Personal Data Breach.
6.2.1. Company shall notify Customer, without undue delay, upon Company or any Company
Sub-processor becoming aware of and verifying the occurrence of a Personal Data Breach
affecting Customer Personal Data, providing Customer with sufficient information to allow
Customer to meet any obligations to report or inform Data Subjects of the Personal Data
Breach under the Data Protection Laws.
5
6.2.2. Company shall co-operate with Customer and assist in the investigation, mitigation and
remediation of each such Personal Data Breach.
7. RETURN AND DELETION OF CUSTOMER DATA
7.1. Company shall return Customer Personal Data to Customer and delete Customer Personal Data in
accordance with Company’s data retention policies and applicable law, provided that Company may
retain Customer Personal Data to the extent required by applicable law and always provided that
Company shall ensure the confidentiality of all such Customer Personal Data.
8. ADDITIONAL TERMS
8.1. Application of Standard Contractual Clauses.
8.1.1. The Standard Contractual Clauses provided in Attachment 1 shall apply only to Processing of
Personal Data as defined under the GDPR that is directly or indirectly transferred from the
European Economic Area (“EEA”), to any recipient in a country that is: (1) not recognized by
the European Commission as providing an adequate level of protection to personal data, and
(2) not covered by a suitable framework for the protection of Personal Data.
8.1.2. In accordance with the Standard Contractual Clauses, a Customer transferring Personal Data
to Company will be considered a “Data Exporter”, and Company will be considered a “Data
Importer” (both terms as defined in the Standard Contractual Clauses).
8.2. Instructions. Customer hereby instructs Company to Process Personal Data in accordance with the
applicable purchased Service as detailed in the Agreement.
8.3. Audits and Certifications. The parties agree that the audits described in Clause 5.6., Clause 11
and Clause 12.2. of the Standard Contractual Clauses shall be carried out in accordance with the
following conditions:
8.3.1. Upon Customer’s request, and subject to the confidentiality obligations set forth in the
Agreement, and no more than once annually during the Agreement, Company shall make
available to Customer (or Customer’s independent, third-party auditor that is not a competitor
of Company and which is under written obligations of confidentiality) information regarding
Company’s compliance with the obligations set forth in this DPA in the form of the audits set
forth in Company’s Data Security Documentation to the extent Company makes them
generally available to its Customers. Customer may contact Company in accordance with the
“Notices” Section of the Agreement to request an on-site audit of the procedures relevant to
the protection of Personal Data.
8.3.2. Customer or the relevant Customer Affiliate undertaking an audit shall give Company or the
relevant Company Affiliate reasonable notice of any audit or inspection and shall make (and
ensure that each of its mandated auditors makes) reasonable efforts to avoid causing (or, if it
cannot avoid, to minimize) any damage, injury or disruption to the Company’s and its
6
Affiliates’ premises, equipment, personnel and business while its personnel are on those
premises in the course of such an audit or inspection. Company or its Affiliates need not give
access to their premises for the purposes of such an audit or inspection:
8.3.2.1. to any individual unless they produce reasonable evidence of identity and
authority;
8.3.2.2. outside normal business hours at those premises, unless the audit or inspection
needs to be conducted on an emergency basis and Customer or the relevant
Customer Affiliate undertaking an audit has given written notice to Company or
the relevant Company Affiliate that this is the case before attendance outside
those hours begins; or
8.3.2.3. for the purposes of more than one audit or inspection in any calendar year,
except where Customer is required to carry out by Data Protection Law, a
Supervisory Authority, or any similar regulatory authority responsible for the
enforcement of Data Protection Laws in any country or territory.
8.3.3. Customer shall reimburse Company within thirty (30) days of invoice for any time expended
for any such on-site audit at Company’s then-current professional services rates, which shall
be made available to Customer upon request. Before the commencement of any such on-site
audit, Customer and Company shall mutually agree upon the scope and timing of the audit in
addition to the reimbursement rate for which Customer shall be responsible. Customer shall
promptly provide Company with a copy of any information regarding any non-compliance
discovered during the course of an audit.
8.4. Certification of Deletion. Certification of Deletion shall be provided upon Customer’s written
request to Company.
8.5. Record of Processing Activities. Company shall maintain a record of all categories of processing
activities carried out on behalf of the Customer, in accordance with the provisions of the applicable
Data Protection Law.
9. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
9.1. Company and each Company Affiliate shall provide reasonable assistance to Customer with any
data protection impact assessments, and prior consultations with Supervising Authorities or other
competent data privacy authorities, which Customer reasonably considers to be required of
Customer by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law,
in each case solely in relation to Processing of Customer Personal Data by, and taking into account
the nature of the Processing and information available to, Company.
7
10. MISCELLANEOUS
10.1. Without prejudice to Clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard
Contractual Clauses, (i) the parties to this DPA hereby submit to the choice of jurisdiction stipulated
in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including
disputes regarding its existence, validity, termination, or the consequences of its nullity; and (ii) this
DPA and all non-contractual or other obligations arising out of or in connection with it are governed
by the laws of the country or territory stipulated for this purpose in the Agreement.
10.2. Order of precedence. In the event of any conflict or inconsistency between this DPA and the
Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
8
ATTACHMENT 1
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, Customer (hereafter
“data exporter”) and Company, 220-312 Main Street, Vancouver, BC Canada, V6A 2T2 (888) 965-0855,
[email protected] (hereinafter “data importer”), each a “party” and together, the “parties”, have agreed
on the following terms, including the Contractual Clauses (the “Clauses”) in order to evidence 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 A attached hereto
and incorporated herein.
BACKGROUND
The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to
the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of
personal data to data importer. Data importer is located in a country not ensuring an adequate level of data
protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller
agrees to the provision of such Services, including the processing of personal data incidental thereto, subject
to the data importer’s execution of, and compliance with, the terms of these Clauses.
These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted
Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent
possible without material uncertainty as to the result) any change (including any replacement) made in
accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses
approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection
Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any
equivalent contractual clauses approved by it or by another competent authority under another Data Protection
Law (otherwise). All Appendices attached hereto are incorporated herein.
If these Clauses are not governed by the law of a Member State, the terms “Member State” and “State” are
replaced, throughout, by the word “jurisdiction”.
CLAUSE 1
1. DEFINITIONS
For the purposes of the Clauses:
1.1. “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; [If these Clauses
are governed by a law which extends the protection of data protection laws to corporate persons, the
words “except that, if these Clauses govern a transfer of data relating to identified or identifiable
corporate (as well as natural) persons, the definition of "personal data" is expanded to include those
9
data” are added after “such data”.]
1.2. “the data exporter” means the controller who transfers the personal data;
1.3. “the data importer” means the processor who agrees to receive from the data exporter personal data
intended for processing on his/her behalf after the transfer in accordance with (i) his/her instructions
and (ii) the terms of the Clauses and (iii) 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; [If these Clauses are
not governed by the law of a Member State, the language of paragraph (c)(iii) of this Clause 1 is
deemed deleted.]
1.4. “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/her instructions,
the terms of the Clauses and the terms of the written subcontract;
1.5. “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;
1.6. “technical and organizational security measures” means those measures aimed at protecting
personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized
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
2. DETAILS OF THE TRANSFER
2.1. The details of the transfer and in particular the special categories of personal data where applicable
are specified in Appendix A which forms an integral part of these Clauses.
CLAUSE 3
3. THIRD-PARTY BENEFICIARY CLAUSE
3.1. The data subject can enforce against the data exporter this Clause 3, Clauses 4(b)-4(i), Clauses
5(a)-5(e), and 5(g)-5(j), Clause 6(1) and 6(2), Clause 7, Clause 8(2), and Clauses 9-12 as third-party
beneficiary.
3.2. The data subject can enforce against the data importer this Clause, Clauses 5(a)-5(e) and 5(g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9-12, 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
10
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.
3.3. The data subject can enforce against the subprocessor this Clause 3.3, Clauses 5(a)-5(e) and 5(g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9-12, 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 subprocessor’s own processing operations under the Clauses.
3.4. 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
4. OBLIGATIONS OF THE DATA EXPORTER
The data exporter agrees and warrants:
4.1. that the processing, including the transfer itself, of the personal data has been and will continue to be
carried out in accordance with the relevant provisions of the applicable data protection law (and,
where applicable, has been notified to the relevant authorities of the Member State where the data
exporter is established) and does not violate the relevant provisions of that State;
4.2. that it has instructed and throughout the duration of the personal data processing services will
instruct the data importer to process the personal data transferred only on the data exporter's behalf
and in accordance with the applicable data protection law and the Clauses;
4.3. that the data importer will provide sufficient guarantees in respect of the technical and organizational
security measures specified in Appendix B to this Attachment 1;
4.4. that after assessment of the requirements of the applicable data protection law, the security
measures are appropriate to protect personal data against accidental or unlawful destruction or
accidental loss, alteration, unauthorized 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;
4.5. that it will ensure compliance with the security measures;
4.6. 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
11
country not providing adequate protection within the meaning of Directive 95/46/EC; [If these
Clauses are not governed by the law of a Member State, the words "within the meaning of Directive
95/46/EC" are deleted.]
4.7. 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;
4.8. to make available to the data subjects upon request a copy of the Clauses, with the exception of
Appendix B, and a summary description of the security measures, as well as a copy of any contract
for subprocessing services which has to be made in accordance with the Clauses, unless the
Clauses or the contract contain commercial information, in which case it may remove such
commercial information;
4.9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause
11 by a subprocessor providing at least the same level of protection for the personal data and the
rights of data subject as the data importer under the Clauses; and
4.10. that it will ensure compliance with Clause 4(a)-4(i).
CLAUSE 5
5. OBLIGATIONS OF THE DATA IMPORTER
The data importer agrees and warrants:
5.1. to process the personal data only on behalf of the data exporter and in compliance with its
instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to
inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled
to suspend the transfer of data and/or terminate the contract;
5.2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the
instructions received from the data exporter and its obligations under the contract and that in the
event of a change in this legislation which is likely to have a substantial adverse effect on the
warranties and obligations provided by the Clauses, it will promptly notify the change to the data
exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of
data and/or terminate the contract;
5.3. that it has implemented the technical and organizational security measures specified in Appendix B
before processing the personal data transferred;
5.4. that it will promptly notify the data exporter about:
5.4.1. any legally binding request for disclosure of the personal data by a law enforcement authority
unless otherwise prohibited, such as a prohibition under criminal law to preserve the
12
confidentiality of a law enforcement investigation,
5.4.2. any accidental or unauthorized access, and
5.4.3. any request received directly from the data subjects without responding to that request,
unless it has been otherwise authorized to do so;
5.5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the
personal data subject to the transfer and to abide by the advice of the supervisory authority with
regard to the processing of the data transferred;
5.6. at the request of the data exporter to submit its data processing facilities for audit of the processing
activities covered by the Clauses which shall be carried out by the data exporter or an inspection
body composed of independent members and in possession of the required professional
qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in
agreement with the supervisory authority;
5.7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for
subprocessing, unless the Clauses or contract contain commercial information, in which case it may
remove such commercial information, with the exception of Appendix B 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;
5.8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior
written consent;
5.8.1. that the processing services by the subprocessor will be carried out in accordance with
Clause 11;
5.8.2. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to
the data exporter.
CLAUSE 6
6. LIABILITY
6.1. 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.
6.2. 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/her 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
13
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.
6.3. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its
own liabilities.
6.4. If a data subject is not able to bring a claim against the data exporter or the data importer referred to
in Clause 6, 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
7. MEDIATION AND JURISDICTION
7.1. 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:
7.1.1. to refer the dispute to mediation, by an independent person or, where applicable, by the
supervisory authority;
7.1.2. to refer the dispute to the courts in the Member State in which the data exporter is
established.
7.2. 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
8. COOPERATION WITH SUPERVISORY AUTHORITIES
8.1. 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.
8.2. 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
14
as would apply to an audit of the data exporter under the applicable data protection law.
8.3. 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 5.2.
CLAUSE 9
9. GOVERNING LAW
9.1. The Clauses shall be governed by the law of the Member State in which the data exporter is
established.
CLAUSE 10
10. VARIATION OF THE CONTRACT
10.1. The parties may not vary or modify the Clauses unless agreed to in writing and signed by the parties.
This does not preclude the parties from adding clauses on business-related issues where required
as long as they do not contradict or broaden data importer’s obligations under the Clause.
CLAUSE 11
11. SUBPROCESSING
11.1. 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.
11.2. 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.
11.3. The provisions relating to data protection aspects for subprocessing of the contract referred to in
paragraph 1 shall be governed by the law of the Member State in which the data exporter is
15
established.
11.4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and
notified by the data importer pursuant to Clause 5.10., 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
12. OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES
12.1. 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.
12.2. The data importer and the subprocessor agree that upon request of the data exporter and/or of the
supervisory authority, each will submit its data processing facilities for an audit of the measures
referred to in Clause 12 paragraph 1.
16
APPENDIX A
TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix A forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary
information to be contained in this Appendix.
1. DATA EXPORTER
The data exporter is (please specify briefly your activities relevant to the transfer):
Data Exporter is (i) the authorized person or legal entity that has executed the Standard Contractual
Clauses as a Data Exporter, and (ii) any Affiliate of Customer who is located within the European
Economic Area and Switzerland that has purchased Services from Company.
2. DATA IMPORTER
The data importer is (please specify briefly activities relevant to the transfer):
New Mode Consulting Inc. (dba New/Mode), a provider of cloud software and data storage services, which
processes personal data at the instruction of Data Exporter in accordance with the terms of this DPA.
3. DATA SUBJECTS
The personal data transferred concern the following categories of data subjects (please specify):
Data Exporter may transfer Personal Data to the Service at its sole discretion as controlled by Data
Exporter, which may include data regarding the following categories: (1) customers, business partners,
vendors, and prospects (who are natural persons); (2) Data Exporter’s users, supporters, prospective
users, and prospective supporters, authorized by Data Exporter to use the Service (who are natural
persons); (3) Data Exporter’s affiliates, advisors, agents, and freelancers.
4. CATEGORIES OF DATA
The personal data transferred concern the following categories of data (please specify):
Data Exporter may submit Personal Data to the Service to the extent that, under Data Exporter’s sole
discretion and control, may include the following categories of Personal Data:
○ First and Last Name
○ Contact Information
○ Professional life data
○ Personal life data
○ Connection/relationship data
○ Locational data
○ Publicly available social media (e.g., Facebook, Twitter, etc.) profiles, status and information
○ Event and survey/petition registration, attendance, and response data
○ Issue affiliation data
○ Internet cookies
17
○ Voice mail and text messages and logs
○ Comments and posts submitted to websites, mobile apps, and online communities
5. SPECIAL CATEGORIES OF DATA (IF APPROPRIATE)
The personal data transferred concern the following special categories of data (please specify):
Except where Union or Member State law provide that a data subject may not consent to any of the items
in the following list, Data Exporter may submit special categories of data to the Service to the extent that,
under Data Exporter’s sole discretion and control, and which is, for the sake of clarity, Personal Data with
information revealing one or more of the following categories of Personal Data:
○ Political party affiliation, participation, voting, contribution, and opinion data
○ Religious belief and organization donation data
○ Philosophical belief data
○ Trade union membership data
○ Ethnic data
The specified purposes for processing data in the special categories are: to provide the Service to
Customer in accordance with the Agreement and for improving the Service for all customers.
6. PROCESSING OPERATIONS
The personal data transferred will be subject to the following basic processing activities (please specify):
The purpose of Processing the Personal Data is to provide the Service to Customer in accordance with the
Agreement.
18
APPENDIX B
TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix B forms part of the Clauses.
1. Description of the technical and organizational security measures implemented by the data
importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer will maintain technical, administrative, and physical measures designed to maintain the
confidentiality, security, and integrity of Personal Data uploaded to the Service, as provided in the Data
Security Documentation which is made available by data importer.
19
ATTACHMENT 2
DESCRIPTION OF DATA PROCESSING (only applicable to customers subject to the GDPR)
Company may Process personal data as part of the processing described hereunder. At any time, Customer,
as Data Controller, may modify the description of the Processing and will notify in writing such modifications to
Company.
Customer shall decide, in its sole discretion, what Personal Data is transferred to and stored on Company’s
Service. While the Customer decides what data to submit, it typically may concern the data described below.
1. Subject-matter
The definition of the Services provided by Company is described in the Agreement entered into between
Company and Customer.
2. Duration
For the duration of the Agreement.
3. Nature and purpose of the processing
The purpose of Processing the Personal Data is to provide the Service to Customer in accordance with the
Agreement.
4. Type of personal data processed
The typical personal data processed by Customer using Company’s Services are the following:
○ First and Last Name
○ Contact Information
○ Professional life data
○ Personal life data
○ Connection/relationship data
○ Locational data
○ Publicly available social media (e.g., Facebook, Twitter, etc.) profiles, status and information
○ Event and survey/petition registration, attendance, and response data
○ Issue affiliation data
○ Internet cookies
○ Voice mail and text messages and logs
○ Comments and posts submitted to websites, mobile apps, and online communities
Except where Union or Member State law provide that a data subject may not consent to any of the items
in the following list, Customer may submit special categories of data to the Service to the extent that,
under Customer’s sole discretion and control, and which is, for the sake of clarity, Personal Data with
information revealing one or more of the following categories of Personal Data:
○ Political party affiliation, participation, voting, contribution, and opinion data
○ Religious belief and organization donation data
○ Philosophical belief data
20
○ Trade union membership data
○ Ethnic data
5. Categories of data subjects
○ Customers, business partners, vendors, and prospects (who are natural persons);
○ Customer’s users, supporters, prospective users, and prospective supporters, authorized by
Customer to use the Service (who are natural persons);
○ Customer’s affiliates, advisors, agents, and freelancers.
21