XIBO SIGNAGE – DATA PROCESSOR

DATA PROCESSING AGREEMENT

This Data Processing Agreement is made between:

(1) Xibo Signage Limited, whose trading address is Curtis House, 34 Third Avenue, Hove, United Kingdom BN3 2PD ("Xibo"); and

(2) The Customer as defined in the Xibo Main Agreement (as defined below) ("the Customer").

And is entered into and dated the same date as the Main Agreement.

BACKGROUND

(A) Xibo is a specialist provider of digital display software and other services including the Xibo Content Management System (CMS), Xibo Message Relay (XMR) and Xibo Player which it makes available as stand alone products or as a software as a service on a subscription basis.

(B) As part of the provision of its services to the Customer, including provided where referenced pursuant to a Main Agreement, Xibo may process personal data on behalf of the Customer.

(C) This Data Processing Agreement sets out the terms, requirements and conditions on which Xibo will process personal data when providing services to the Customer. This Data Processing Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.

The Terms of which are Agreed as follows:

AGREED TERMS

  1. Data Protection

1.1 Xibo has agreed to provide digital display software and other services (‘the Services’) to the Customer. In the performance of such Services, Xibo may process Protected Data (defined below) on behalf of the Customer.

1.2 In consideration for the Customer engaging the services of Xibo, Xibo shall comply with the data security, confidentiality and other obligations imposed on it under this Data Processing Agreement.

1.3 For the purposes of this Data Processing Agreement: "Authorised Persons" the persons or categories of persons that the Customer authorises to give Xibo Personnel data processing instructions, being the signatories to this Data Processing Agreement.

"Business Purposes" the services described in this Data Processing Agreement or relevant Main Agreement or any other purpose specifically identified in Appendix A.

"Data Controller, Data Processor, Data Protection Officer, Data Subject, Personal Data, Personal Data Breach, Process, Processed and Processing" shall bear their respective meanings given in the Data Protection Legislation;

"Data Protection Legislation" means any legislation relating to the processing, privacy and use of personal data, as applicable to the Customer, Xibo and/or the Services being provided including under any relevant Main Agreement, including: the Data Protection Act 2018 (DPA 2018) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all other applicable legislation implementing European Community Directives 95/46 and 2002/58, and any subsequent European Union legislation, including the EU General Data Protection Regulation 2016/679 (‘the GDPR’) and any applicable national legislation implementing or supplementing the GDPR or DPA 2018, in relation to the protection of personal data and/or any corresponding or equivalent national legislation in any relevant jurisdiction (once in force and applicable).

"Data Subject Requests" a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Legislation relating to the Protected Data;

"Main Agreement" a commercial agreement entered into by the parties for the provision of the Services to which this Data Processing Agreement attaches.

"Protected Data" any personal data received from or on behalf of the Customer or otherwise obtained, created, generated, transmitted, stored or processed in connection with the performance of the Xibo’s obligations under this Data Processing Agreement or the Main Agreement.

"Xibo Personnel" all employees, staff, other workers, agents and consultants of Xibo and of any sub-contractors who are engaged in the provision of the Services under this Data Processing Agreement from time to time.

1.4 Xibo and the Customer acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Xibo is the Data Processor of any Protected Data in relation to which Xibo is providing the Services.

1.5 Appendix 1 sets out the details of the processing of personal data as required by Article 28(3) of the GDPR. The Customer may make reasonable amendments to Appendix 1 by written notice to Xibo from time to time as the Customer reasonably considers necessary to meet those requirements.

1.6 Appendix 2 sets out the Standard Contract Clauses that may apply as set out under the terms of this Data Processing Agreement.

1.7 In the event of any conflict between the terms of this Data Processing Agreement and the Main Agreement, this Data Processing Agreement shall prevail.

  1. Personal Data Types and Processing Purposes

2.1. The Customer and Xibo acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and Xibo is the processor.

2.2. The Customer retains control of the Protected Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices, and the Customer further warrants to Xibo that:

2.2.1. it has obtained and will obtain any necessary consents and has a lawful basis for any processing instructions it gives to Xibo; and

2.2.2. it has in place and will maintain in place appropriate technical and organisational measures against:

2.2.2.1. unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Protected Data;

2.2.2.2. accidental or unlawful loss, destruction, alteration, disclosure or damage of Protected Data;

2.2.2.3. hacking, or unauthorised access or technical or physical disruption to its hosting, systems or services (including ensuring security, confidentiality, integrity, availability and resilience of its hosting, systems and services);

and shall ensure that availability of and access to Protected Data can be restored in a timely manner after an incident, and shall regularly, test, assess and evaluate the effectiveness of its systems and the technical and organisational measures adopted by it, including as set out in this clause 2.2.2.

  1. Obligations of Xibo

3.1. Xibo will only process the Protected Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions from Authorised Persons. Xibo will not process the Protected Data in a way that does not comply with this Data Processing Agreement or Main Agreement or the Data Protection Legislation. Xibo must promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Data Protection Legislation.

3.2. Xibo must comply with any Customer request or instruction from Authorised Persons requiring Xibo to amend, transfer, delete or otherwise process the Protected Data, or to stop, mitigate or remedy any unauthorised processing.

3.3. Xibo will maintain the confidentiality of all Protected Data and will not disclose Protected Data to third parties unless the Customer or this Data Processing Agreement, or relevant Main Agreement, specifically authorises the disclosure, or if the Protected Data is anonymised by Xibo, or as required by law. If a law, court, regulator or supervisory authority requires Xibo to process or disclose Protected Data, Xibo will use reasonable endeavours to first inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.4. Xibo will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of Xibo’s processing and the information available to Xibo, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

3.5. The Customer must promptly notify Xibo of any changes to Data Protection Legislation that may adversely affect Xibo’s performance of this Data Processing Agreement, or relevant Main Agreement.

3.6. Xibo will only collect Protected Data for the Customer using a notice or method that the Customer specifically pre-approves, the purpose or purposes for which their Protected Data will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing.

  1. Security

4.1. Xibo will implement and maintain in place appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Protected Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Protected Data.

4.2. Xibo will implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

4.2.1. the encryption of personal data;

4.2.2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

4.2.3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;

4.2.4. a process for regularly testing, assessing and evaluating the effectiveness of security measures; and

4.2.5. the anonymisation of any Protected Data required for analytical data purposes.

  1. Breach Notification

5.1. Xibo shall:

5.1.1. notify the Customer if it becomes aware of any unauthorised or unlawful processing of, loss of, damage to or destruction or corruption of, the Protected Data, or any attempts to gain unauthorised access to Protected Data and any notification must, at the very least, contain the information required by Data Protection Legislation;

5.1.2. within forty-eight (48) hours, provide the Customer with sufficient information to allow the Customer to meet any notification obligations to report or inform Data Subjects and/or the ICO or any other supervisory or regulatory body of any such breach under Data Protection Legislation;

5.1.3. except where required to do so by law, not notify a Data Subject, the ICO or any other supervisory or regulatory body or any other third party of an actual or suspected breach (and shall treat the existence and circumstances of such actual or suspected breach as confidential information) unless such notice by the Customer is required by applicable laws or is authorised in writing by the Customer;

5.1.4. following such breach or attempted breach of security, investigate and report on the cause of the breach, including proposed corrective action;

5.1.5. provide full co-operation to the Customer to assist the Customer with any investigation relating to security, mitigation, remediation or any other action which is carried out by or on behalf of the Customer in respect of such breach; and

5.1.6. where possible, restore, re-constitute and/or reconstruct such Protected Data unless the matter arose from the Customer’s specific instructions, negligence, wilful default or breach of this agreement or the Agreement, in which case the Customer shall cover all reconstitution or reconstruction expenses.

  1. Xibo Personnel

6.1. Xibo shall ensure that access to the Protected Data is strictly limited to:

6.1.1. such Xibo Personnel who need access to the Protected Data to assist the Customer in meeting the Customer's obligations under this Data Processing Agreement or relevant Main Agreement; and

6.1.2. in the case of any access by Xibo Personnel, such part or parts of the Protected Data as is strictly necessary for performance of such person’s duties in delivering the Services.

6.2. Xibo shall ensure that all Xibo Personnel who have access to and/or process Protected Data:

6.2.1. are informed of the confidential nature of the Protected Data and have signed written confidentiality undertakings in respect of the Protected Data;

6.2.2. have undertaken adequate training on compliance with Data Protection Legislation; and

6.2.3. are aware both of Xibo's duties and their personal duties and obligations under such laws and this Data Processing Agreement.

  1. Rights of the Data Subject

7.1. At all times whilst it is engaged to provide the Services, Xibo shall implement and maintain in place appropriate technical and organisational measures to assist the Customer in the fulfilment of the Customer’s obligation to respond to Data Subject Requests under Data Protection Legislation. Xibo shall notify the Customer promptly (and in any event within twenty-four (48) hours) if it receives a Data Subject Request.

7.2. Xibo shall provide the Customer with full co-operation, information and assistance in relation to any Data Subject Request.

7.3. Except where required to do so by law, Xibo shall not disclose any Protected Data to any Data Subject or to a third party (except for declared sub-processors) other than at the request of, with the prior written consent of, and on the documented instructions of the Customer or as provided for in this Data Processing Agreement.

  1. Rights of the Customer

8.1. Xibo shall promptly make available to the Customer on request all information necessary to demonstrate compliance with this Data Processing Agreement and with Data Protection Legislation. The Customer is entitled, on giving at least five (5) working days' notice to Xibo, to inspect or appoint representatives to inspect all facilities, equipment, documents and electronic data relating to the processing of Protected Data under the control of Xibo.

  1. Liability

9.1. Xibo will indemnify the Customer against loss or damage suffered or incurred by the Customer as a result of or arising out of any breach of Xibo’s obligations under this Data Processing Agreement. Xibo’s liability under this Data Processing Agreement shall not however exceed the subscription fees paid by the Customer to Xibo in the preceding 6 months for the relevant services as part of the Services under this Data Processing Agreement or Main Agreement and shall in any event be capped at the maximum liability set out in the Main Agreement.

9.2. Neither party shall be liable to the other for loss of profits, sales or business, agreements or contracts; anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or information; loss or damage to premises, installation or reinstallation costs, or any indirect or consequential loss.

  1. General

10.1. Nothing in this Data Processing Agreement shall be construed as preventing a party from taking such steps as are necessary to comply with its own obligations under any Data Protection Legislation or any other applicable law.

10.2. Nothing in this Data Processing Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

10.3. This Data Processing Agreement shall continue in full force and effect for so long as Xibo is processing Protected Data on behalf of Customer (including without limitation during the time Xibo is providing the Services).

10.4. A person who is not a party to this Data Processing Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Data Processing Agreement, but this does not affect any right or remedy of a third party which exists, or is available, other than in that Act.

10.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

10.6. In the event of any inconsistency between the terms of the Main Agreement and the terms of this Data Processing Agreement, the terms of this Data Processing Agreement shall prevail.

10.7. This Data Processing Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Data Processing Agreement.

10.8. The parties agree to the enactment of standard contractual clauses (SCCs – as set out at Appendix 2) if required as a result of the UK’s exit from the EU or other circumstances in which the parties agree they are required to ensure the continued flow, safeguarding and processing of the Protected Data by Xibo on behalf of the Customer. The terms of the SCCs shall prevail only so far as the applicable law demands that they cannot otherwise be superseded by the terms of this Data Processing Agreement.

THIS DATA PROCESSING AGREEMENT IS ENTERED INTO BY XIBO AND THE CUSTOMER ON THE DATE OF THE MAIN AGREEMENT AND IS EXPRESSLY INCORPORATED INTO THE MAIN AGREEMENT.

APPENDIX 1: XIBO DETAILS OF PROCESSING

This Appendix includes certain details of the processing of the Protected Data as required by Article 28(3) of the GDPR.

Data Controller: The Customer

Data Processor: Xibo Signage Limited, whose trading address is Curtis House, 34 Third Avenue, Hove, United Kingdom BN3 2PD (‘Xibo’). Xibo’s sub-processors are:

Servers and Storage

Xibo uses these subprocessors to provide the service to you

  • DigitalOcean LLC
  • OVH
  • Amazon Web Services EMEA SARL
  • Vultr (Vultr Holdings Corporation)
  • Easyspace Ltd (iomart)

Optional APIs

You may at your option configure the service to consume data from these services. The service may pass personal information to these for the purposes of authentication, or as the Controller directs the system to do.

  • Twitter Inc
  • Yammer (Microsoft Corporation)

Other web services that the customer may configure the service to connect to and consume data from and as set out in the Xibo Privacy Policy.

The obligations and rights of Data Controller: The obligations and rights of the Customer are set out in this Data Processing Agreement or relevant Main Agreement.

Subject matter of the processing: The subject matter and duration of the processing of the Protected Data are set out in this Appendix and the Data Processing Agreement or relevant Main Agreement.

Duration of the processing: For the duration of the Data Processing Agreement, or relevant Main Agreement, subject to periodic review, or termination of the Data processing Agreement on reasonable notice by either party.

Nature and purposes of the processing: To provide the services to the Controller as set out in the Main Agreement.

Type of Personal Data: To provide the core service, the following data may be processed:

Identity Data includes: first name, last name, maiden name, username or similar identifier, title, photos or other images.

Contact Data includes: address, email address and telephone numbers, and any social media accounts used.

Transaction data includes details about payments and other details of products and services purchased.

Technical Data includes: device ID, internet protocol (IP) address, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices used.

Profile Data includes: any username and password, purchases or orders made, interests, preferences, feedback and survey responses.

Usage Data includes: information about how you sites or services are used.

Marketing and Communications Data includes preferences in receiving marketing and communication preferences.

Categories of Data Subject: The categories of data subjects:

  • Customer Personnel and other contacts

Plan for return and destruction of the Protected Data once the processing is complete UNLESS requirement under law to preserve that type of data: Personal Data will be processed for the duration of the Data Processing Agreement or relevant Main Agreement and then returned to the Customer as set out in this Agreement or as made known to Xibo, or destroyed .

APPENDIX 2 : STANDARD CONTRACTUAL CLAUSES – XIBO AS THE DATA PROCESSOR/ DATA IMPORTER

Standard contractual clauses for the transfer of personal data from the European Union to processors established in third countries (controller-to-processor transfers), where necessary to further the parties requirements as otherwise set out in the Data Processing Agreement to which this Appendix 2 attaches (‘Data Processing Agreement’).

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

Data exporting organisation: the Customer (‘Data Exporter’):

Data importing organisation: Xibo (‘Data Importer’)

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in ANNEX A.

  1. Definitions For the purposes of the Clauses:

(a) personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);

(b) the data exporter means the controller who transfers the personal data;

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

(d) the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;

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

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

  1. Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in ANNEX A which forms an integral part of the Clauses.

  1. Third-party beneficiary clause

The data subject can enforce against the data exporter this clause 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 6.1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary.

The data subject can enforce against the data importer this clause, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.1 The data subject can enforce against the sub-processor this clause 3.1, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

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

  1. Obligations of the data exporter

The data exporter agrees and warrants: (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in ANNEX B to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of ANNEX B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and

(j) that it will ensure compliance with clause 4(a) to clause 4(i).

  1. Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in ANNEX B before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

a. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

b. any accidental or unauthorised access; and

c. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of ANNEX 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;

(h) that, in the event of sub-processing, it has previously informed the data exporter (including via its Privacy Policy) and obtained its prior written consent (via the Data Processing Agreement);

(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

  1. 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 sub-processor 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 its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor under these SCCs shall be limited to its own processing operations under the Clauses.

  1. 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:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

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.

  1. 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 sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).

  1. Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

  1. Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses, including via the Data Processing Agreement.

  1. Sub-processing

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.

11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

11.5 The data importer may during and after the termination of the provision of data-processing services under the Clauses disclose anonymised analytical data derived from the personal data (“Anonymised Data”) to third parties without the consent of the data importer.

  1. 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 sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 12.1.

ANNEX A - To the Standard Contractual Clauses

This Annex forms part of the Clauses and must be completed, where the relevant information is not already set out in the Data Processing Agreement to which this Appendix 2 and Annex A attach.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this ANNEX A:

Description Details
Data Exporter [Specified in the Data Processing Agreement]
Data Importer [Specified in the Data Processing Agreement]
Data Subjects [Specified in the Data Processing Agreement]
Categories of Data [Specified in the Data Processing Agreement]
Special Categories of Data (if appropriate) [Specified in the Data Processing Agreement if Relevant]
Processing Operations [Specified in the Data Processing Agreement and/or Main Agreement]
Type of Personal Data To provide the core service, the following data may be processed: Identity Data includes: first name, last name, maiden name, username or similar identifier, title, photos or other images. Contact Data includes: address, email address and telephone numbers, and any social media accounts used. Transaction data includes details about payments and other details of products and services purchased. Technical Data includes: device ID, internet protocol (IP) address, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices used. Profile Data includes: any username and password, purchases or orders made, interests, preferences, feedback and survey responses. Usage Data includes: information about how you sites or services are used. Marketing and Communications Data includes preferences in receiving marketing and communication preferences.
Categories of Data Subject The categories of data subjects: Customer Personnel and other contacts
Plan for return and destruction of the Protected Data once the processing is complete UNLESS requirement under law to preserve that type of data Personal Data will be processed for the duration of the Data Processing Agreement or relevant Main Agreement and then returned to the Customer as set out in this Agreement or as made known to Xibo, or destroyed .

ANNEX B - To the Standard Contractual Clauses

This Appendix forms part of the Clauses and has been entered into and agreed by the data exporter and data importer on the date of the Main Agreement.

Where required, and in so much as the information is not already available to the Data Exporter via the Data Processing Agreement or Main Agreement, the data importer shall set out the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c).