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MALBEK DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) forms is (collectively the “Agreement”) entered into by a Customer (“Customer” or
“Controller”) and Malbec Solutions, Inc. d/b/a Malbek (“Vendor” or “Processor”). Capitalized terms not otherwise defined herein
shall have the meaning given to them in the Agreement.
HOW THIS DPA APPLIES
The terms of this DPA only apply to Customer and Vendor as follows:
A. Sections 1 through 8, Attachment 1, Appendix 1, and Appendix 2 apply when Data Protection Laws and Regulations
apply to the Agreement.
B. When only the California Consumer Privacy Act (“CCPA”) applies to the Agreement, then only Section 8, Section 10, and
Appendix 3 apply.
C. The entire DPA along with all appendices and attachments apply when Data Protection Laws and Regulations and the
CCPA apply to the Agreement.
1. DEFINITIONS
Any capitalized terms not defined herein shall have the meaning given to that term in the Agreement, CCPA, or Data Protection
Laws and Regulations.
“Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Data Protection Laws and Regulations” means all laws and regulations, including EU General Data Protection Regulation
(GDPR), laws and regulations of the European Union, the European Economic Area (“EEA”) and their member states,
Switzerland and the United Kingdom, applicable to the Processing of Personal Data with the Service under the Agreement.
“Data Subject” means the individual to whom Personal Data relates.
“Personal Data” means any information (i) of an identified or identifiable person and, (ii) of an identified or identifiable
legal entity (where protected under applicable Data Protection Laws and Regulations), where such data is submitted to the
Service.
“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, storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Service” means as defined in the Agreement or the software as a service applications provided by Vendor to which
Customer is licensed to use.
“Subprocessor” means any third party appointed by or on behalf of Vendor to Process Personal Data in connection with the
Service.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer
is the Data Controller and Vendor is a Data Processor.
2.2 Customer’s Responsibilities. Customer shall, in Customer’s use of the Service, submit or make available Personal
Data to Vendor for Processing in accordance with the requirements of Data Protection Laws and Regulations, and
Customer’s instructions to Vendor for the Processing of Personal Data shall comply with Data Protection Laws and
Regulations. Customer shall have sole responsibility for the initial accuracy, quality, and legality of Personal Data and
the means by which Customer acquired Personal Data. Notwithstanding anything to the contrary, Customer agrees that
is solely responsible for (i) configuring all Vendor-provided software features as necessary for Customer to use and
process Personal Data in compliance with applicable law, including Data Protection Legislation and the CCPA; and (ii)
implementing and following any Vendor-provided requirements relating to such compliance.
2.3 Customer’s Instructions. Vendor shall only Process Personal Data on behalf of and in accordance with Data Protection
Laws and Regulations, Customer’s instructions, and as authorized under the Agreement (including as is necessary to
provide the Service), and shall treat Personal Data as Confidential Information. Customer instructs Vendor to Process
Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order
Form(s), including to provide you the Service; (ii) Processing initiated by Users in their use of the Service; and (iii)
Processing to comply with other reasonable instructions provided by Customer (e.g., via email). Vendor will notify
Customer upon becoming aware and if in Vendor’s reasonable judgement that Customer’s instruction violates Data
Protection Laws and Regulations.
3. RIGHTS OF DATA SUBJECTS
3.1 Correction, Blocking, and Deletion. To the extent Customer, in Customer’s use of the Service, does not have the
ability to correct, amend, block or delete Personal Data, as required by Data Protection Laws and Regulations, Vendor
shall assist Customer in facilitating such actions to the extent Vendor is legally permitted to do so.
3.2 Data Subject Requests. Vendor shall, to the extent legally permitted, notify Customer without undue delay if Vendor
receives a request from a Data Subject for access to, correction, amendment or deletion of that Data Subject’s Personal
Data. If legally permitted, Vendor shall not respond to any such Data Subject request without Customer’s prior written
consent except to confirm that the request relates to Customer. Vendor shall cooperate and assist in relation to the
handling of a Data Subject’s request for access to that person’s Personal Data, to the extent legally permitted and to the
extent Customer does not have access to such Personal Data through use of the Service.
4. VENDOR PERSONNEL
4.1 Confidentiality. Vendor shall ensure that its personnel engaged in the Processing of Personal Data are informed of the
confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed
written confidentiality agreements. Vendor shall ensure that such confidentiality obligations survive the termination of
the personnel engagement.
4.2 Limitation of Access. Vendor shall ensure that Vendor’s access to Personal Data is limited to only those personnel who
require such access to perform under the Agreement.
5. SECURITY
Considering 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, Vendor shall
implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the
risk and as detailed in Appendix 2. Vendor regularly monitors compliance with these safeguards. Vendor may update these
technical and organization measures from time to time but will not materially decrease the overall security of the Service.
6. SECURITY BREACH MANAGEMENT AND NOTIFICATION
Vendor maintains security incident management policies and procedures and shall, to the extent permitted by law and,
without undue delay, notify Customer of any actual unauthorized access, use, modification, or disclosure of Personal
Data, by Vendor or its Subprocessors (a “Security Breach”). Vendor shall make all reasonable efforts to identify and
take all reasonable steps to remediate the cause of such Security Breach.
7. SUBPROCESSORS
7.1 Subprocessors. Pursuant to this DPA and Clause 5(h) of the Standard Contractual Clauses (if applicable), Customer
acknowledges and expressly agrees that Vendor is granted the authority to subcontract the processing of Personal Data
to Subprocessors provided that:
7.1.1 Vendor or Vendor affiliates on its behalf may engage Subprocessors under a written (including in electronic
form) contract consistent with the terms of this DPA in relation to the Subprocessor's processing of Personal
Data. Vendor shall be liable for any breaches by the Subprocessor in accordance with the terms of this DPA.
7.1.2 Vendor will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to
establish that it can provide the same level of protection of Personal Data as stipulated by this DPA.
7.1.3 Vendor will provide a list of subprocessors including the name, geographic location, and role of each
Subprocessor.
7.1.4 Vendor will inform Customer in writing and in advance of any intended additions or replacements to the list of
Subprocessors including name, address and role of the new Subprocessor. Customer can object to any new
subprocessor provided that a legitimate reason is provided under appliable data protection laws including but
not limited to the General Data Protection Regulation. Within 30 days from the date of Vendor’s notice to
Customer informing Customer of the new Subprocessor, Customer may request that the parties discuss in good
faith a resolution to the objection. Such discussions shall not affect Vendor’s right to use the new
Subprocessor(s) after 30 days.
7.1.5 Vendor may replace a Subprocessor without advance notice where the reason for the change is outside of
Vendor’s reasonable control and prompt replacement is required for security or other urgent reasons. If this
occurs, Vendor will inform Customer of the replacement Subprocessor as soon as possible following its
appointment.
8. ADDITIONAL TERMS
8.1 Application of Standard Contractual Clauses. The Standard Contractual Clauses in Attachment 1 and the additional
terms in this Section 8 will apply to the Processing of Personal Data by Vendor in the course of providing Services as
follows:
8.1.1 Notwithstanding anything to the contrary in this DPA, the Standard Contractual Clauses apply only to Personal
Data that is transferred from the EEA and/or Switzerland and the United Kingdom to outside the EEA and
Switzerland or the United Kingdom, either directly or via onward transfer, to any country or recipient: (i) not
recognized by the European Commission as providing an adequate level of protection for personal data (as
described in the EU Data Protection Directive or its successors), and (ii) not covered by a suitable framework
(e.g. Binding Corporate Rules for Processors, etc.) recognized by the relevant authorities or courts as providing
an adequate level of protection for Personal Data. In the event the United Kingdom is no longer considered or
effectively part of the EU or EEA then such transfers of Personal
Data to and from the United Kingdom will be treated as a non-EU or EEA country and the terms of this Section
8.1.1 will apply accordingly.
8.1.2 Subject to Section 8.1.1, the Standard Contractual Clauses apply to (i) the legal entity that has executed the
Agreement and is the Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer
established within the EEA and Switzerland or the United Kingdom that have licensed the Service. For the
purpose of the Standard Contractual Clauses and this Section 7, the aforementioned entities shall be deemed
“Data Exporters”.
8.2 Objective and Duration. The objective of Processing of Personal Data by Vendor is the provision of the Service
pursuant to the Agreement for the term(s) of the Agreement. Vendor shall process Customer Data solely for the following
purposes:
8.2.1 Product improvement (in particular, product features and functionality, workflows and user interfaces) and
development of new Delighted products and services,
8.2.2 improving product performance,
8.2.3 Internal support resource demand allocation and planning.
8.3 Audits. Vendor shall make available to Customer all information necessary to reasonably demonstrate compliance with
this DPA, and shall allow for and contribute to audits, including inspections in relation to the Processing of the Personal
Data by the Vendor. Such audits and inspections may be conducted by an third party auditor, provided that such third-
party auditor shall be subject to confidentiality obligations and provided that such audits and inspections and the results
therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by
Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third
party without Vendor’s prior written approval. Upon Vendor's first request, Customer shall return all records or
documentation in Customer's possession or control provided by Vendor in the context of the audit and/or the inspection.
Notwithstanding anything to the contrary, (i) Customer shall give Vendor reasonable prior written notice of at least
fourteen (14) days of any audit or inspection to be conducted by it; (ii) Customer’s right to conduct any audit under this
DPA shall be limited to once per twelve (12) month period except where required by law or in the event of Vendor’s
breach of this DPA; and (iii) all audits shall occur during Vendor’s normal business hours without undue disruption to
Vendor’s business.
8.4 Return and Deletion of Personal Data. Where applicable based on the Service, Vendor will return and delete Personal
Data in accordance with the Agreement. Customer is responsible for the correction, amendment, blocking or deleting
of Personal Data within its control within the Service. Vendor will provide reasonable assistance to Customer in the
correcting, amendment, blocking or deleting of Personal Data in the Service.
8.5 Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the Services and the
information available to Vendor, Vendor will provide commercially reasonable assistance to Customer in complying
with Customer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles
35 and 36 of the GDPR.
9. Remedies and Applicability
9.1 This DPA and liability or remedies arising hereunder are subject to any and all limitations on liability and disclaimers
of types of damages in the Agreement. This DPA automatically terminates upon termination or expiration of the
Agreement.
9.2 Subject to applicability in accordance with Section 7.1, in the event of any conflict or inconsistency between this DPA
and the Agreement on the one hand and the Standard Contractual Clauses in Attachment 1 on the other hand, the
Standard Contractual Clauses shall prevail.
9.3 Notices under the DPA and the Standard Contractual Clauses shall be in accordance with the Agreement.
10. Californica Consumer Protection Act Compliance
10.1 Vendor will only collect, use, retain, or disclose personal information for the Contracted Business Purposes for which
Customer provides or permits personal information access.
10.2 Vendor will not collect, use, retain, disclose, sell, or otherwise make personal information available in a way that does not
comply with the CCPA. If a law requires Vendor to disclose personal information for a purpose unrelated to the
Contracted Business Purpose, Vendor must first inform the Customer of the legal requirement and give the Customer an
opportunity to object or challenge the requirement unless applicable law prohibits such notice.
10.3 To the extent commercially reasonable, Vendor will limit personal information collection, use, retention, and disclosure to
activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible
operational purpose.
10.4 Vendor must promptly comply with any Customer request or instruction requiring the Vendor to provide, amend, transfer,
or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing.
ATTACHMENT 1
Standard Contractual Clauses for Personal Data Transfers from an EU Controller to a Processor Established in a Third
Country (Controller-to-Processor Transfers)
SECTION I
CLAUSE 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of
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 (General Data Protection
Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter
'entity/ies') transferring the personal data, as listed in Annex I.A (hereinafter each 'data exporter'), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or
indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each 'data importer')
have agreed to these standard contractual clauses (hereinafter: 'Clauses').
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these
Clauses.
CLAUSE 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal
remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers
from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of
Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update
information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in
these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict,
directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of
Regulation (EU) 2016/679.
CLAUSE 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter
and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a),
(c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four:
Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and
(f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
CLAUSE 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the
same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in
Regulation (EU) 2016/679.
CLAUSE 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between
the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
CLAUSE 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the
purpose(s) for which they are transferred, are specified in Annex I.B.
CLAUSE 7 - Optional
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these
Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to
these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in
Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to
becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
CLAUSE 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able,
through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these
Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter.
The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out
in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by
the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other
confidential information, including the measures described in Annex II and personal data, the data exporter may redact part
of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data
subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall
provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted
information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation
(EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become
outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data
exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the
end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal
data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data
exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data
importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that
prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with
these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice
to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout
the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the
requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical
and organisational measures to ensure the security of the data, including protection against a breach of security leading to
accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter 'personal data
breach'). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of
implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data
subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during
transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional
information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive
control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least
implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks
to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent
strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons
authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory
obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these
Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse
effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach.
Such notification shall contain the details of a contact point where more information can be obtained, a description of the
nature of the breach (including, where possible, categories and approximate number of data subjects and personal data
records concerned), its likely consequences and the measures taken or proposed to address the breach including, where
appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all
information at the same time, the initial notification shall contain the information then available and further information
shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply
with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the
affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or
philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a
natural person, data concerning health or a person's sex life or sexual orientation, or data relating to criminal convictions
and offences (hereinafter 'sensitive data'), the data importer shall apply the specific restrictions and/or additional safeguards
described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from
the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the
same country as the data importer or in another third country, hereinafter 'onward transfer') if the third party is or agrees to
be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45
of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation
of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the
context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of
another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under
these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to
the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer
shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate
compliance with the obligations set out in these Clauses and at the data exporter's request, allow for and contribute to audits
of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance.
In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits
may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried
out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any
audits, available to the competent supervisory authority on request.
CLAUSE 9
Use of sub-processors
(a) The data importer has the data exporter's general authorisation for the engagement of sub-processor(s)
from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that
list through the addition or replacement of sub-processors at least thirty (30) days in advance, thereby giving the data
exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data
importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to
object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of
the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection
obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for
data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause
8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject
pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter's request, a copy of such a sub-processor agreement
and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other
confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a
copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-
processor's obligations under its contract with the data importer. The data importer shall notify the data exporter of any
failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the
event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall
have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
CLAUSE 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data
subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects'
requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II
the appropriate technical and organisational measures, taking into account the nature of the processing, by which the
assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the
instructions from the data exporter.
CLAUSE 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through
individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any
complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these
Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each
other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall
accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual
residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or
association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive
and procedural rights to seek remedies in accordance with applicable laws.
CLAUSE 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach
of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive
compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by
breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject
shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer
(or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is
without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a
controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the
data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation
corresponding to the data importer's responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach
of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action
in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from
the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
CLAUSE 13
Supervision
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with
responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as
indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of
application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to
Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative
within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as
competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of
application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a
representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member
States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods
or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent
supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent
supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer
agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority,
including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the
necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
CLAUSE 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of
destination applicable to the processing of the personal data by the data importer, including any requirements to disclose
personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations
under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental
rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the
objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in
particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the
number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the
purpose of processing; the categories and format of the transferred personal data; the economic sector in which the
transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination – including those requiring the
disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific
circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the
safeguards under these Clauses, including measures applied during transmission and to the processing of the
personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best
efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data
exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent
supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and
for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with
the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a
disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph
(a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe
that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify
appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the
data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers
that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do
so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal
data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to
termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is
terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
CLAUSE 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if
necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under
the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such
notification shall include information about the personal data requested, the requesting authority, the legal basis for
the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to
these Clauses in accordance with the laws of the country of destination; such notification shall include all
information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of
the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to
communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts
in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the
data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the
requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have
been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of
the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e)
and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it
remains within the powers granted to the requesting public authority, and to challenge the request if, after careful
assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the
country of destination, applicable obligations under international law and principles of international comity. The data
importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall
seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided
on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules.
These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure
and, to the extent permissible under the laws of the country of destination, make the documentation available to the data
exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to
a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
CLAUSE 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for
whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses,
the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the
contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of
personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to
paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within
one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory
authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the
contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the
relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c)
shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall
apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is
deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws
applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants
that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as
required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission
adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which
these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the
personal data is transferred. This is without prejudice to other obligations applying to the processing in question under
Regulation (EU) 2016/679.
CLAUSE 17
Governing law
These Clauses shall be governed by the law of the EU Member State in which the data exporter is
established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another
EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of XXX.
CLAUSE 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of XXX
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the
courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data
protection officer and/or representative in the European Union]
1. Name:
Address:
Contact person's name, position and contact details: …
Activities relevant to the data transferred under these Clauses:
Signature and Date:
Role (controller/processor): Controller
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with
responsibility for data protection]
1. Name: Malbec Solutions, Inc. d/b/a Malbek
Address: Address: 300 Carnegie Center, Suite 210, Princeton NJ 08540
Contact person's name, position and contact details: Matt Patel, COO, matt@malbek.io
Activities relevant to the data transferred under these Clauses: Malbek is a provider of contract lifecycle
management software and services for its customers (the Data exporters).
Signature and Date:
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Data Exporter may submit Personal Data to the Service, the extent of which is determined and controlled solely by
the Data Exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following
categories of Data Subjects:
• Data Exporter’s agents, including employees and officers
• Data Exporter’s client’s agents, including employees and officers
Categories of personal data transferred
The Personal Data transferred concern the following categories of data (please specify):
Data Exporter may submit Personal Data to the Service, the extent of which is determined and controlled solely by the Data
Exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
• First and last name
• Employment title
• Position
• Email address
• IP address
• Telephone number
• Contract data
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration
the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only
for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional
security measures.
None
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Data Exporter will have the ability to continuously transfer data to Data Importer throughout the term of the
Agreement.
Nature of the processing
Storage and use of data as necessary to provide the Data Importer with contract lifecycle management software and
services.
Purpose(s) of the data transfer and further processing
The objective of processing of Personal Data by Data Importer is the performance of the Service and support
services pursuant to the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine
that period
Duration of the Service and 30 days beyond the termination of the Service.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
None
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND
ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
EXPLANATORY NOTE:
The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on
the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organizational measures implemented by the data importer(s) (including any
relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the
processing, and the risks for the rights and freedoms of natural persons.
Data Importer shall implement appropriate and commercially reasonable physical, technical and organizational
measures designed to ensure that data exporter’s and its clients’ personal data is protected against accidental, unauthorized or
unlawful use, processing, destruction, loss, disclosure or access. The technical and organizational measures shall ensure a level of
security appropriate to the risk, taking into account the state of the art, the costs of implementation, the nature and scope, context and
purpose of processing and risks of varying likelihood and severity for the rights and freedoms of individuals. These measures shall
include, as appropriate, (a) encryption and pseudonymization of personal data, (b) the ability to ensure the ongoing confidentiality,
integrity, availability and resilience of processing systems and services, (c) the ability to restore the availability and access to
personal data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and
evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing; and (e) establishing
measures to identify vulnerabilities with regard to the processing of personal data in systems used to provide the services to the Data
Exporter.
Data Importer will not materially decrease the overall level of the above technical and security measures during
term of the underlying agreement, term of use, license and/or subscription term
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by
the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the
data exporter
ANNEX III
LIST OF SUB-PROCESSORS
The controller has authorized the use of the following sub-processors:
Sub Processors can be found here: https://www.malbek.io/sub-processors
Contact Person: details: Matt Patel, COO, matt@malbek.io
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are
authorized):
2. Storage of data and allow for processing of data to provide the Services as per the Agreement.
APPENDIX 3 TO THE DPA
Words and phrases defined in the CCPA shall have the same meaning in this Appendix and all other terms shall have the meaning
in the Agreement. In the event of a conflict between the terms of this Appendix and the Agreement, this Appendix will control but
all other terms in the Agreement will otherwise remain in full force.
1. The following definitions and rules of interpretation apply in this Appendix:
(a) CCPA means the California Consumer Privacy Act of 2018, (Cal. Civ. Code §§ 1798.100 to 1798.199), and any
related regulations provided by the California Attorney General all of which as may be amended from time to time.
(b) Contracted Business Purposes means the Services and as otherwise described in the Agreement for which the
Vendor receives or accesses personal information from Customer.
2. Vendor's CCPA Obligations:
(a) Vendor will only collect, use, retain, or disclose personal information for the Contracted Business Purposes for
which Customer provides or permits personal information access.
(b) Vendor will not collect, use, retain, disclose, sell, or otherwise make personal information available in a way that
does not comply with the CCPA. If a law requires Vendor to disclose personal information for a purpose unrelated to the
Contracted Business Purpose, Vendor must first inform the Customer of the legal requirement and give the Customer an
opportunity to object or challenge the requirement, unless applicable law prohibits such notice.
(c) To the extent commercially reasonable, Vendor will limit personal information collection, use, retention, and
disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another
compatible operational purpose.
(d) Vendor must promptly comply with any Customer request or instruction requiring the Vendor to provide, amend,
transfer, or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing. If Customer is
able to amend, transfer, or delete the personal information itself and chooses Vendor’s assistance, Customer agrees to pay
reasonable fees for such assistance at a rate mutually agreed in advance between the parties.
(e) If the Contracted Business Purposes require the collection of personal information from individuals on the
Customer's behalf, Vendor will always provide a CCPA-compliant notice addressing use and collection methods.
(f) If the CCPA permits, Vendor may aggregate, deidentify, or anonymize personal information, so it no longer meets
the personal information definition, and may use such aggregated, deidentified, or anonymized data for its own research
and development purposes. Vendor will not attempt to or actually re-identify any previously aggregated, deidentified, or
anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying
such data.
3. Assistance with CCPA Obligations:
(a) Vendor will reasonably cooperate and assist Customer in responding to CCPA-related inquiries, including
responding to verifiable consumer requests, taking into account the nature of Vendor's processing and the information
available Vendor.
(b) A party must notify the other party promptly if it receives any complaint, notice, or communication that directly
or indirectly relates to either party's compliance with the CCPA. Specifically, Vendor must notify the Customer within five
(5) working days if it receives a verifiable consumer request under the CCPA.
4. Subcontracting:
(a) Vendor may use subcontractors to provide the Contracted Business Services. Vendor cannot make any disclosures
to the subcontractor that the CCPA would treat as a sale and Vendor shall ensure appropriate terms no less protective than
those in this Appendix are entered into between Vendor and the subcontractor.
(b) Vendor remains fully liable for each subcontractor's performance to the same extent if Vendor were performing
itself.
(c) Upon the Customer's written request, Vendor will provide Customer with information and reports demonstrating
Vendor’s compliance with the obligations in this Appendix.
5. Certifications:
(a) Both parties will comply with all applicable requirements of the CCPA when collecting, using, retaining, or
disclosing personal information.
(b) Vendor certifies that it understands this Appendix’s and the CCPA's restrictions and prohibitions on selling
personal information and retaining, using, or disclosing personal information outside of the parties' business relationship,
and Vendor will comply with them.