DATA PROCESSING AGREEMENT -CLOSEOUT CLOUD

DATA PROCESSING AGREEMENT

This Data Processing Agreement including its appendices (“DPA”) forms part of EULA between CO FSM and the Client. DPA sets forth the parties’ respective rights and obligations when acting as Controller (“the Client”) and Processor (“CO FSM”). All– capitalized terms not defined in this DPA shall have the same meaning as defined in the EULA.

Definitions:

Applicable Privacy Law” means all data protection and privacy laws and regulations applicable to the respective party in its role in the Processing of Personal Data under EULA, including General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27.04.2016. (“GDPR”).

Personal Data” means any data related to or associated with an identified or identifiable natural person, including, but not limited to, any Client employee information, or Client customer information. A natural person is identifiable if, with means reasonably likely to be used, the individual could be identified from the data or a grouping of data.

Processing” – means any operation or set of operations that are performed on Personal Data or sets of personal data, whether by manual or automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Services” means all services the Processor provides, as agreed under the EULA.

Sub-processor” means any third party engaged by CO FSM to process Personal Data in connection with providing the services pursuant to the EULA.

 

Terms such as “controller”, “processor”, “data subject” and other terms shall have the meaning given under Applicable Privacy Law.

 

In addition to this DPA, in case of international data transfers, the European Commission’s standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council according to the Commission’s implementing decision on 4 June 2021 shall apply (“Standard Contractual Clauses” or “SCC”).

 

Processing of Personal Data. Personal Data shall be Processed only on documented instructions from the Controller unless required to do so by Applicable Privacy Law to which the Processor is subject, in which case the Processor shall inform the Controller of that legal requirement before processing unless the law prohibits such information on important grounds of public interest.

If the Processor deems that an instruction violates Applicable Privacy Law, the Processor shall promptly inform the Controller. However, this shall not apply if the law in question prohibits such notification for reasons of substantial public interest. The Processor shall then be entitled to suspend the execution of the instruction by written notice to the Controller until both Parties confirm the instruction. The Processor shall Process Personal Data as necessary to perform Services pursuant to the EULA, and as further instructed by the Client in its use of the Services. The Client may submit Personal Data to the Services, the extent of which is determined and controlled by the Client in its sole discretion, and may include, but not be limited to Personal Data relating to the following categories of data subject: customers, business partners, employees or contract persons.

The Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: First and last name, title, position, contact information (email, phone, address) location.

 

Processor shall not I) retain, access, use, sell, share, or otherwise Process any Personal Data for any purpose other than the provisions under EULA and only to the extent necessary to provide Services; II) retain, use or disclose Personal Data outside of the direct business relationship between the Client and CO FSM; III) combine Personal Data which CO FSM receives from or on behalf of the Client, with Personal Data which it receives from or on behalf of another person or persons.

 

In cases where the Controller becomes subject to any inspections, investigations, and/or administrative measures conducted by a supervisory, legal or regulatory authority, an administrative offense, criminal procedure, a claim by a data subject or by a third party or any other claim relating to this DPA, the Processor shall take all steps required to support the Controller; and inform the Controller as soon as possible about any complaints, inquiries, requests or other communications received from data subjects, data protection authorities or third parties relating to the Processing of Personal Data by the Processor and/or the Controller and where, in accordance with Applicable Privacy Laws, Controller is obliged to answer a data subject’s complaints, inquiries, requests or other communication relating to the processing of such data Subject’s Personal Data, Processor shall support Controller in providing the required information. Processor shall not directly respond to any complaints, inquiries, requests, or other communications of data subjects and shall refer such data subjects to the Controller.

Controller’s obligations. The Controller is responsible for the lawfulness of Personal Data Processing under or in connection with this DPA. The Controller warrants that it has provided all notices and obtained all consents, permissions, and rights necessary under Applicable Privacy Law for CO FSM to lawfully Process Clients Personal Data and it shall ensure that its Processing instructions comply with Applicable Privacy Law and that Processing of Clients Personal Data by CO FSM in accordance with its instructions will not cause CO FSM to be in breach of Applicable Privacy Law.

Sub-processors and transfer of Personal Data. The Processor is authorized to enter into agreements with another data processor, e.g. a Sub-Processor, regarding the Processing of Personal Data. The Controller should be informed about currently engaged Sub-Processors and the Processor is obligated to inform the Controller about any additional change of engaged Sub-Processors in the future.

The Processor shall draw up a written sub-processing agreement with another Sub-Processor. In its agreement with another data processor, the Processor shall ensure that the other data processor as a minimum accepts the same data protection obligations as those undertaken by the Processor in this DPA as regards the processing of the Personal Data handled by the other data processor.

The Processor shall guarantee the lawfulness of another data processor’s processing of Personal Data. If another data processor fails to fulfill its data protection obligations, the Processor shall remain fully liable to the Controller for the fulfillment of such other data processor’s obligations. The fact that the Controller has consented to the Processor entering into an agreement with another data processor shall be of no consequence to the Processor’s obligation to comply with the DPA. When an agreement with another data processor regarding the processing of Client Data comprised by the DPA terminates, the Processor shall notify the Controller thereof.

The Controller agrees that the Processor may engage the following sub-processors:

  • Amazon Web Services EMEA SARL, (“AWS Europe”)
  • Pty Ltd Level 6, 341 George Street, Sydney NSW 2000

CO FSM group sub-processor:

  • CloseOut Cloud Inc. 200 Continental Drive, Suite 401, Newark, Delaware 19713

The Processor guarantees that any possible transfer of Personal Data Processed on behalf of the Client will be carried out only if appropriate security measures and safeguards are applied in accordance with the Applicable Privacy Law.

 

For the purposes of providing appropriate support, the Processor might Process Personal Data within its premises when/if requested by the Controller. In any other case, Personal Data is stored and processed on an available public cloud provider’s infrastructure or Client’s private cloud infrastructure.

Security measures. The Processor will implement appropriate technical and organizational measures so that the Processing of Personal Data will meet the requirements of Applicable Privacy Laws.

Protective measures include using state-of-the-art software, computers, and encryption methods as well as the use of adequate access controls, password procedures, automatic blocking, case-specific authorization concepts, logging and documentation of processes, and the implementation of a data security concept in accordance with ISO 27001 standard and GDPR principles. The measures taken shall be adequate for the protection of Personal Data against accidental or unlawful destruction, loss, or alteration and against unauthorized disclosure, abuse, or other processing in breach of the law in force at any time. CO FSM shall ensure that persons authorised to process Personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. CO FSM may update and/or modify security measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the services provided to the Client.

The Controller is responsible for its secure use of the services including securing its Access credentials, and appropriate steps to securely encrypt or backup any Personal Data in connection with the services. CO FSM shall, taking into account the nature of processing and the information available to CO FSM, assist the Client in ensuring compliance with the obligations on data protection impact assessments and prior consultations in accordance with Applicable Privacy Law.

Audit. CO FSM shall make available to the Client all information necessary to demonstrate compliance with the obligations laid down in Applicable Privacy Law. The Client shall be entitled to audit whether the Processor fulfills its obligations in accordance with this DPA, during usual business hours where the Controller gives reasonable (but in any event no less than 30 days) prior written notice to the Processor. The Controller shall bear all costs resulting from the audit and compensate the Processor for all costs incurred as a result of the audit. Nothing herein shall be construed to require CO FSM to provide any proprietary information, trade secrets, or any other information that would violate CO FSM’s confidentiality obligations.

Personal Data breach. Upon becoming aware of the security breach, the Processor shall without undue delay, but no later than 24 hours notify the Controller and shall provide all information relating to the security breach. CO FSM shall investigate the cause of the security breach and take reasonably necessary actions to mitigate the impact of the security breach. If necessary, CO FSM shall assist the Controller with notifying the competent supervisory authority regarding a Personal data security breach.

Return and deletion of the Client Data. At the end of the provision of the Services, all Personal Data shall be destroyed or returned in accordance with article 10 of EULA., unless Applicable Privacy Law requires storage of Personal Data.

Duration. The DPA shall remain in force for as long as the Processor processes Client data on behalf of the Controller in accordance with the EULA.

Governing Law. Any dispute or claim arising out or in connection with this DPA shall be finally settled by arbitration administered by the SCC.

 

APPENDIX

STANDARD CONTRACTUAL CLAUSES

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) ([i]) for the transfer of 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 8.1(b), 8.9(a), (c), (d) and (e);

(iii)          Clause 9(a), (c), (d) and (e);

(iv)          Clause 12(a), (d) and (f);

(v)           Clause 13;

(vi)          Clause 15.1(c), (d) and (e);

(vii)         Clause 16(e);

(viii)        Clause 18(a) and (b).

(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 organizational 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, unauthorized 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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 organizational 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 ([ii]) (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 defense 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 authorization 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 1 month 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. ([iii]) 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 authorized 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 organizational 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, organization 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

  • [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 behavior 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 authorizing 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 authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ([iv]);

(iii)          any relevant contractual, technical or organizational 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 organizational 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 minimization

(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 Austria.

 

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 Austria.

(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

 

APPENDIX

ANNEX I

  1. LIST OF PARTIES
Data exporterData importer
Name: The party identified as the Client in the Agreement.

 

Name: CloseOut FSM d.o.o.

 

Contact person’s name, position, and contact details: as set out in the Proposal.

 

Contact person’s name, position, and contact details: as set out in the Proposal. privacy@closeout.cloud.

 

Activities relevant to the transfer: Defined in Annex 1(B)Activities relevant to the transfer: Defined in Annex 1(B)
Role: ControllerRole: Processor

 

 

  1. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred.

 

Data subjects include individuals who use Services.
Categories of personal data transferred.

 

Access credentials and other contact data (such as name, contact details, phone number, email address), company, location, job title, certificates, photos, and device IDs.
Sensitive data transferredN/A
The frequency of the transferDepends on the Client’s use of the Services.
Nature of the processingThe Services and the Support Services as set out in the Agreement
Purpose(s) of the data transfer and further processing

 

CO FSM will Process the Personal Data to manage its business relationship with the Client, to provide agreed Services, to improve and enhance its Services, to provide Support Services, for security purposes, and to comply with legal obligations.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that periodDefined in DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing.The subject matter, nature, and duration of Processing for Sub-processors are dependent upon the Services licensed by the Client. In particular:

–         For Cloud Services, CO FSM Sub-processors provide infrastructure, security and alert monitoring, and reporting services, and Process Client Personal Data that the Client uploads for the duration of the Services under the Agreement.

–         For Support Services, Sub-processors Process Client Personal Data if provided by the Client in order to provide the Support Services pursuant to the Agreement and for the duration of the Services Term.

–         For Reseller Services, Sub-processors Process Client Personal Data to provide Services pursuant to the Agreement.

 

  1. COMPETENT SUPERVISORY AUTHORITY

The competent supervisory authority will be determined in accordance with Applicable Privacy Law.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

  1. Measures of pseudonymization and encryption of personal data
  • Encryption in transit is implemented as all communication between WEB front-end servers and Mobile App towards CO FSM back-end servers, is secured via HTTPS mechanism with servers’ SSL certificate. Secure communication ensures that data transmitted between the Client and the backend application is encrypted and protected from eavesdropping and tampering.
  • For the rest of the encryption, CO FSM is using SSE-S3 with one of the strongest block ciphers available, 256-bit Advanced Encryption Standard (AES-256), to encrypt all Client Data.
  • Each user is authenticated with unique user ID/password parameters. Users’ access to the Hosted Services is password protected. CO FSM follows the strong password principle, which involves enforcing password policies that require users to create strong and complex passwords to protect their accounts. Strong passwords include a combination of uppercase and lowercase letters, numbers, and special characters. All passwords on the platform are stored in encrypted form and are fully protected in terms of security.

 

  1. Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services.
  • Confidentiality Obligations. CO FSM personnel are required to agree to confidentiality obligations before undertaking work for CO FSM or accessing any CO FSM facilities and/or systems.
  • Password Policy. CO FSM password management enforces password policy requirements, such as password complexity which includes a combination of uppercase and lowercase letters, numbers, and special characters.
  • Operational Security & Vulnerability Response. CO FSM monitors a variety of communication channels for operational and capacity management, and security vulnerabilities, and CO FSM’s operations and security team will react promptly to known operational issues and/or security vulnerabilities.
  • Server Operating System. CO FSM uses a hardened operating system implementation customized for the CO FSM Services.
  • The Cloud Services are incrementally backed up and virtually replicated.

 

  1. Processes for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing.
  • Software Development Lifecycle. The Cloud Services are developed using a standardized and reviewed Secure Software Development Lifecycle (SDL) to reduce the risk of introducing security vulnerabilities into the production of Cloud Services.
  • Penetration Testing & Vulnerability Scans. External penetration tests are performed by an independent third party on an annual basis and incorporated as a requirement of the CO FSM product compliance programs. Vulnerabilities identified are routinely documented, tracked, and resolved by the respective service team.

 

  1. Measures for user identification and authorization.
  • User Roles. Client has primary control over the creation, deletion, and suspension of user roles within the Client’s environment of the Software Solution.

 

  1. Measures for ensuring physical security of locations at which personal data are processed.
  • Hosting Infrastructure and Data Center Security. CO FSM currently uses infrastructure provided by Amazon Web Services, for the infrastructure of its Cloud Services.

 

  1. Measures for ensuring events logging.
  • Events Logging. CO FSM maintains logs of every user action and is making these logs available to system administrators for search and overview. Logs are used to detect and investigate security incidents, track user actions, and ensure compliance with security policies and regulations.

 

  1. Measures for ensuring system configuration, including default configuration.
  • Code Review Process. CO FSM’s change management includes a code review process within an established review process and in accordance with a defined policy.

 

  1. Measures for internal IT and IT security governance and management.
  • Information Risk Governance. CO FSM reviews, maintains, and ensures adherence to formal IT security and data handling policies.
  • Information Security Roles & Responsibilities. All information security responsibilities are defined and allocated.

 

  1. Measures for ensuring data minimization.
  • Software Development Lifecycle. Privacy checks are performed during the Software Development Process when new product features are developed.
  • Access Restrictions. Restrict access to Personal Data to the parties involved in the processing in accordance with the “need to know” principle and according to the function behind the creation of differentiated access profiles.

 

  1. Measures for ensuring data quality.
  • Secure Development Environment. Development environments are protected from malicious or accidental development and update of code that may compromise the confidentiality, integrity, and availability of the platform.

 

  1. Measures for ensuring limited data retention.
  • At the end of the provision of the Services, all Personal Data shall be destroyed by CO FSM as a processor (including copies) in its possession or control in accordance with the Agreement.

 

  1. Sub-processors technical and organizational measures can be found at the following link:

 

ANNEX III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

  1. Amazon Web Services EMEA SARL, (“AWS Europe”), contact: AWS Compliance Reports Support – Amazon Web Services For Cloud Services, AWS provides infrastructure, security and alert monitoring, and reporting services.
  2. Pty Ltd Level 6, 341 George Street, Sydney NSW 2000, contact: dpasubmission@atlassian.com. For Support Services, Atlassian Process Client Personal Data if provided by the Client in order to provide the Support Services pursuant to the Agreement and for the duration of the Services Term.

CO FSM group sub-processor:

  1. CloseOut Cloud Inc. 200 Continental Drive, Suite 401, Newark, Delaware 19713. CloseOut Cloud Inc. as a reseller and affiliated legal person with CO FSM, may Process Client Personal Data to provide technical and operational assistance.

Close