DATA PROTECTION ADDENDUM

This Data Protection Addendum (“DPA”) is dated as of May 25, 2018 (“Effective Date”) and is between Pixelberry Studios, a corporation incorporated under the laws of the State of California, with its principal office at 100 View St., #204, Mountain View, CA 94041 (“Pixelberry” or “Controller”), and the company that is a party to the Principal Agreement, as defined below ("Company" or “Processor”).

This DPA supplements the service agreement, license agreement, insertion order, or other substantive agreement between Pixelberry and Company (“Principal Agreement”) and sets forth the basic terms and conditions for the use and processing of Pixelberry Personal Information (as defined below) in connection with the Principal Agreement. Further detailed terms and conditions such as the Retention Period (as defined below) and the specific description of the Pixelberry Personal Information are stipulated in Schedule 1 which is incorporated herein as part of this DPA.

1. Definitions

1.1 “Applicable Privacy Law” means all relevant national, federal, state and other data protection or privacy laws, rules and regulations that apply to the Processing of Pixelberry Personal Information, including but not limited to the requirements and protections of the European Union, the United States of America, and any other countries or territories in which Pixelberry Personal Information is Processed.

1.2 “Data Subject” means an identified or identifiable natural person whose Personal Information is Processed by Company. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more factors specific to his physical, physiological, genetic, mental, economic, cultural or social identity.

1.3 “Pixelberry Personal Information” means Personal Information Processed by Company on Pixelberry’s behalf as specified in Schedule 1 attached to this DPA.

1.4 “Personal Information” means any information relating directly or indirectly to the Data Subject.

1.5 “Process” or “Processing” means any operation or set of operations which is performed on Personal Information, whether or not by automated means, including collecting, recording, organizing, structuring, storing, analyzing, adapting, altering, retrieving, consulting, using, disclosing, transmitting, disseminating, otherwise making available, aligning, combining, restricting, erasing, or destroying that Personal Information.

1.6 “Security Incident” shall have the definition set forth in Section 8.1 of this DPA.

1.7 “Standard Contractual Clauses” means Schedule 2 which is incorporated herein as part of this DPA pursuant to the European Commission Decision of February 5, 2010 for the transfer of personal data to processors in countries outside the EU or EEA.

2. Appointment.

2.1 Pixelberry, in its capacity as a Controller, hereby appoints Company as a Processor to Process the Pixelberry Personal Information in accordance with Schedule 1 attached hereto. As the Controller, Pixelberry shall determine the purpose and means of Processing the Pixelberry Personal Information by Processor pursuant to Schedule 1.

2.2 Each party shall comply with all Applicable Privacy Law in carrying out its obligations under this DPA.

2.3 Unless prohibited by law, Company shall promptly inform Pixelberry if Pixelberry Personal Information becomes subject to a search and seizure, attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties. Company shall promptly notify all pertinent parties in that action that any Pixelberry Personal Information affected thereby is Pixelberry’s sole property and that Pixelberry is the responsible entity for Pixelberry Personal Information.

3. Purpose Limitation.

3.1 Company shall Process Pixelberry Personal Information as a Processor strictly in accordance with the instructions of Pixelberry (including Pixelberry’s instructions regarding Company’s obligations under Applicable Privacy Law) contained in this DPA and Schedule 1 attached hereto. If Company is of the opinion that the instructions of Pixelberry may lead to a violation of Applicable Privacy Law, it will inform Pixelberry without undue delay and inform Pixelberry of the nature of the potential violation.

3.2 In no event shall Company Process Pixelberry Personal Information for its own purposes or those of any third party.

3.3 If Company believes it is no longer able to Process the Pixelberry Personal Information consistently with this DPA and Schedule 1, it shall immediately inform Pixelberry and, if requested by Pixelberry, immediately suspend or take reasonable and appropriate steps to remediate any inconsistent Processing.

3.4 For the avoidance of doubt, this DPA will not apply to the Processing of Personal Information by Company for purposes outside the scope of or unrelated to this DPA (which may overlap with the Pixelberry Personal Information hereunder). Except for the Pixelberry Personal Information, Pixelberry will have no access to any other Personal Information that may be Processed by Company, and Company will bear sole responsibility for the Processing of all such other Personal Information in accordance with Applicable Privacy Law.

4. Location of Processing; International Transfers.

4.1 Company is Processing Pixelberry Personal Information solely: (i) within a country deemed under Applicable Privacy Law to provide an adequate level of data protection; and/or (ii) if Pixelberry Personal Information is or will be transferred outside the European Union (“EU”) or European Economic Area (“EEA”), another country pursuant to the Standard Contractual Clauses attached hereto as Schedule 2, with Company as the data importer. Company shall not otherwise transfer Pixelberry Personal Information (nor permit Pixelberry Personal Information to be transferred) across any countries or borders unless: (i) it has first obtained Pixelberry's prior written consent; and (ii) works with Pixelberry to put in place such measures as are necessary to ensure that the transfer is in compliance with Applicable Privacy Law.

5. Term and Termination.

5.1 This DPA will commence on the Effective Date and continue to be effective during the Retention Period (as set forth in Schedule 1) unless otherwise terminated in accordance with Article 5.2. The term of this DPA will extend automatically for successive one (1)-year periods after the end of the then-current term of this DPA unless the Principal Agreement is terminated between Company and Pixelberry.

5.2 Pixelberry may terminate this DPA at any time without cause and in its sole discretion, which termination shall be effective immediately upon ten (10) days prior written notice to Company. Furthermore, breach of this DPA by either party shall give rise to immediate grounds to terminate this DPA upon written notice to the non-breaching party.

6. Retention, Rectification, Deletion and/or Return of Pixelberry Personal Information.

6.1 Company shall not Process or retain Pixelberry Personal Information for longer than stipulated in Schedule 1 (the “Retention Period”).

6.2 If requested in writing by Pixelberry, Company shall without delay rectify Pixelberry Personal Information to ensure it remains accurate, complete, and current.

6.3 Upon termination or expiration of the Retention Period or at Pixelberry’s request, Company shall permanently and irrevocably destroy all Pixelberry Personal Information (including any copies of Pixelberry Personal Information) in its possession or control unless requested by Pixelberry to instead return Pixelberry Personal Information to Pixelberry.

6.4 Where Applicable Privacy Law prevents Company from returning and/or destroying all or part of Pixelberry Personal Information, Company shall isolate and protect the Pixelberry Personal Information from any further Processing or access by any entity other than Pixelberry except to the extent required by such law, and shall ensure any such Pixelberry Personal Information continues to remain fully protected in accordance with the requirements of this DPA and Schedule 1.

7. Cooperation and Data Subjects' Rights.

7.1 Company shall provide all reasonable and timely notice and assistance (including by appropriate technical and organisational measures) to Pixelberry to enable Pixelberry to promptly respond to: (i) any request from a Data Subject to exercise any of its rights under Applicable Privacy Law (including its rights of access, correction, objection, restriction, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a Data Subject, regulator, governmental agency, law enforcement authority or other third party requesting Pixelberry Personal Information and/or otherwise in connection with the Processing of Pixelberry Personal Information.

7.2 In the event that any such request, correspondence, enquiry or complaint is made directly to Company, Company shall promptly inform Pixelberry, unless prohibited by applicable law, providing full details in writing of the same within one (1) business day of receipt. Company shall not respond to such requests until authorized in writing by Pixelberry.

7.3 If required to do so by a competent regulatory authority, Company and Pixelberry acknowledge and agree that either party may disclose this DPA and Schedule 1 to such regulatory authority and that such disclosure will not constitute a breach of confidence.

8. Security.

8.1 Company shall implement appropriate administrative, technical and organizational measures, including maintaining and enforcing a written information security program, to protect Pixelberry Personal Information: (i) from accidental or unlawful destruction, and (ii) loss, misuse, alteration, unauthorized disclosure of, or access to, or any other unlawful Processing of Pixelberry Personal Information (a "Security Incident"). Such measures shall take into account the state of the art, the degree of care required under the Applicable Privacy Law, the costs of implementation and the nature, scope, context, purposes and risk of Processing the Pixelberry Personal Information as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons and shall at a minimum comply with Applicable Privacy Law.

8.2 If Company becomes aware of an actual or potential Security Incident, Company shall notify Pixelberry of: (i) any potential Security Incident without undue delay and within not more than 72 hours; and (ii) any actual Security Incident immediately and in compliance with all security breach laws. Company shall work with Pixelberry to assess the Security Incident and determine the required protective and remediation measures. Company shall, at its cost and expense, implement the protective and remediation measures as reasonably instructed by Pixelberry, provided that Company may take appropriate emergency measures which can be taken immediately without separate instruction by Pixelberry.

8.3 Company shall indemnify Pixelberry for all Damage related to a Security Incident, including the costs of responding to regulatory investigations, notifying regulators or others as required by law, and/or litigation, assessments, fines, losses, penalties, and the costs of notices to, and credit monitoring for, affected Data Subjects as applicable.

9. Sub-Processing.

9.1 Company may share Pixelberry Personal Information with those service providers which have been agreed to in writing by Pixelberry in advance of any Processing by such service providers. If Company wants to add or replace service providers, it shall inform Pixelberry in advance and allow sufficient time for Pixelberry to consider and oppose the proposed addition or change. Pixelberry shall not unreasonably oppose an addition or change. If Pixelberry opposes an addition or change, the parties shall cooperate in good faith to arrive at a mutually acceptable solution.

9.2 Company shall ensure that service providers are subject to the same obligations as those imposed on Company in this DPA, including obligations under the Standard Contractual Clauses. Company remains fully liable to Pixelberry for any failure of service providers to meet their obligations.

10. Staff.

10.1 Company shall ensure that any person that it authorizes to Process Pixelberry Personal Information (including Company's staff) shall: (i) be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty); (ii) receive appropriate training on compliance with this DPA and Applicable Privacy Law; and (iii) Process Pixelberry Personal Information only as permitted by this DPA and Applicable Privacy Law.

11. Audit.

11.1 Company shall permit Pixelberry (or its appointed third party auditors) at Pixelberry’s cost and with reasonable notice to audit Company's compliance with this DPA by making available to Pixelberry all relevant documents and information demonstrating Company’s compliance with this DPA and by allowing inspections of Company’s Processing operations by Pixelberry (or its third party auditors) .

11.2 If vulnerabilities or compliance deficiencies are identified during an audit, Company shall promptly: (i) take reasonable and appropriate steps to protect and stop unauthorized Processing of Pixelberry Personal Information until the identified vulnerabilities or deficiencies are remedied and Pixelberry approves in writing resumption of Processing; (ii) document Company’s remediation proposal; (iii) provide Pixelberry with such documentation and reports on the status of modifications to correct such vulnerabilities; (iv) implement such remediation modifications as may be required as a result thereof and as shall have been pre-approved by Pixelberry in writing; and (iv) if requested in writing by Pixelberry, immediately return any and all Pixelberry Personal Information to Pixelberry.

12. Indemnification. Each party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its successors, assigns, officers, directors, shareholders, employees, contractors, suppliers, agents, and affiliates (collectively, the "Indemnified Party") from and against all loss, cost, harm, fine, expense (including reasonable legal fees and disbursements), liabilities or damage ("Damage") suffered or incurred by the Indemnified Party as a result of or relating to the Indemnifying Party's breach of this DPA or by reason of any negligent acts or intentional misconduct of Indemnifying Party or its agents, servants, or employees in connection with this DPA, and provided that: (i) the Indemnified Party gives the Indemnifying Party prompt notice of any circumstances of which it is aware that give rise to an indemnity claim under this Section (including a copy of any legal pleadings with respect to the claim); and (ii) the Indemnified Party takes reasonable steps and actions to mitigate any ongoing Damage it may suffer as a consequence of the Indemnifying Party's breach. The Indemnified Party shall reasonably cooperate with Indemnifying Party in defending an indemnity claim and the Indemnifying Party has sole control of the defense and settlement of any claims for which it provides indemnification under this DPA, except that the Indemnifying Party shall not enter into any settlement of any claim without the prior written approval of Indemnified Party, such approval not to be unreasonably withheld. The Indemnified Party has the right to retain separate counsel and participate in the defense of the claim at its own expense.

13. General Terms.

13.1 Limitation of Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.3 AND SECTION 12 OF THIS DPA, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND AND NATURE WHATSOEVER, RELATING TO THIS DPA, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST GOODWILL AND WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR STRICT LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

13.2 Equitable Relief. Company acknowledges and agrees that Pixelberry Personal Information is highly confidential, and that Company’s unauthorized reproduction or disclosure of that information may cause Pixelberry irreparable harm for which its remedies at law may be inadequate. Company hereby agrees that Pixelberry will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Company’s obligations under this DPA.

13.3 Precedence; Effect of DPA. Where the provisions of this DPA diverge from or contradict provisions of the Principal Agreement, the provisions of this DPA shall have precedence over the Principal Agreement. Except as supplemented or amended by this DPA, the Principal Agreement will remain in full force and effect.

Schedule 1

DETAILS OF PROCESSING OF PIXELBERRY PERSONAL INFORMATION

This Schedule 1 forms part of the DPA and describes the Processing that Company will perform on behalf of Controller during the Retention Period below.

1. Categories of Data Subjects to whom Pixelberry Personal Information relates:

Data Subjects under this DPA include end users of Pixelberry’s products or services, end customers of Pixelberry’s partners or advertisers, and other individuals whose personal data is Processed by or on behalf of Pixelberry or its partners or advertisers as part of the Company’s services under the Principal Agreement.

2. Types of Pixelberry Personal Information to be Processed:

The Pixelberry Personal Information which may be Processed by Company to perform its services under the Principal Agreement includes any Personal Information derived from a user account or user data set that is controlled by Pixelberry and is used for any game, service, advertisement, or other business activity of Pixelberry. This may include, but is not limited to, device identifiers, advertising identifiers, account numbers or IDs, character IDs, email addresses, demographic information, payment information, purchase history, geolocation information, cookie IDs and related information, history of access or other activity, and information about a browser or device such as language settings, country code, pages visited, and date and time of visit.

3. Nature and purpose of Processing:

Pixelberry is a mobile game publisher that publishes its games worldwide. Company is a vendor, service provider, advertising partner, or other type of company that provides or will provide services to Pixelberry under the Principal Agreement. For such purpose, Pixelberry will provide access to the Pixelberry Personal Information to Company, and Company shall Process such Pixelberry Personal Information on behalf of Pixelberry during the Retention Period set forth below.

4. Duration of Processing (Retention Period):

Pixelberry Personal Information will be Processed and retained by Company for the following duration:

Start date: Effective Date (or any other date specified by Pixelberry)

End date: Date of termination of Principal Agreement (or any other date specified by Pixelberry)

Schedule 2

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: ...................................................................................................... Address: .........................................................................................................................................................

Tel. ........................................;. fax ........................................;. e-mail: .....................................................

Other information needed to identify the organisation

........................................................................................................................................................................

(the data exporter)

And

Name of the data importing organisation: ...................................................................................................... Address: .........................................................................................................................................................

Tel. ........................................;. fax ........................................;. e-mail: .....................................................

Other information needed to identify the organisation

........................................................................................................................................................................

(the data importer)

each a ‘party’; together ‘the parties’,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

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

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

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

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

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

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

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

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

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

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

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

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

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

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

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

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

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

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

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

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

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

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

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

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

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

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

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

(ii) any accidental or unauthorised access; and

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

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

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

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

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

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

Clause 6

Liability

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.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

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

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 shall be limited to its own processing operations under the Clauses.

4. The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.

Indemnification is contingent upon:

(a) the data exporter promptly notifying the data importer of a claim; and

(b) the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

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

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

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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.

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).

Clause 9

Governing law

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

Clause 10

Variation of the contract

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

Clause 11

Sub-processing

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.

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.

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, namely ...........................................

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

Clause 12

Obligation after the termination of personal data-processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the 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.

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 1.

On behalf of the data exporter:

Name (written out in full): ...............................................................................................................................

Position: ...................................................................................................................................................

Address: .................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

(stamp of organisation) Signature ......................................................................................

On behalf of the data importer:

Name (written out in full): ...............................................................................................................................

Position: ...................................................................................................................................................

Address: .................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

(stamp of organisation) Signature ......................................................................................

Appendix 1

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

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

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

........................................................................................................................................................................

........................................................................................................................................................................

........................................................................................................................................................................

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

........................................................................................................................................................................

........................................................................................................................................................................

........................................................................................................................................................................

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

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Categories of data

The personal data transferred concern the following categories of data (please specify):

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Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

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Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

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DATA EXPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

DATA IMPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

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