1. Definitions

For purposes of this DPA, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this DPA have the meanings given in the Agreement.

(a) Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise. 

(b) Agreement means the applicable Terms of Service or other applicable agreement between Customer and Qualified.

(c) Data Protection Laws means any law governing the privacy or security of Personal Data Processed by Qualified in order to render Services to Customer.

(d) CCPA means the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder.

(e) EEA means the European Economic Area. 

(f) European Data Protection Laws means the GDPR and other data protection laws of the European Union, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, to the extent applicable to the Processing of Personal Data under the Agreement.   

(g) GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time. 

(h) Personal Data means Customer Content that constitutes “personal data,” “personal information,” or similar information governed by Data Protection Laws that is Processed by Qualified , except that Personal Data does not include such information pertaining to Customer’s business contacts who are Customer personnel where Qualified acts as a controller of such information.

(i) Processing means any operation or set of operations which is performed on Personal Data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(j) Security Incident means any “security breach,” “breach” or similar term as defined under any Data Protection Law that requires notification to affected persons or regulators of such “security breach, “breach” or similar term.

(k) Security Measures has the meaning given in Section 4(a) (Qualified’s Security Measures).

(l) Sensitive Data means: (a) Personal Data as defined or identified as sensitive, a special category, high risk or similar term under Data Protection Laws, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act, Fair Credit Reporting Act or GDPR; (b) Personal Data as defined under US breach notification laws, including without limitation Social Security numbers, governmental identification information, health or medical information, biometric information, and information about criminal history; and (c) any other information that you consider to be confidential, proprietary, a trade secret, material non-public information, or that you would not want disclosed to a third party; and (d) Personal Data that includes any medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional, health insurance information, biometric information; passwords to any online accounts, credentials to any financial accounts, tax return data, payment card information personal data of any individual who is under 16 years of age.

(m) Standard Contractual Clauses means the mandatory provisions of the standard contractual clauses for the transfer of personal data to processors established in third countries in the form set out by European Commission Decision 2010/87/EU.

(n) Subprocessors means third parties that Qualified engages to Process Personal Data in relation to the Services. 

(o) Third Party Subprocessors has the meaning given in Section 5 (Subprocessors) of Annex 1.

(p) The terms controller, data subject, processor and supervisory authority as used in this DPA have the meanings given in the GDPR. 

2. Duration and Scope of DPA

(a) This DPA will remain in effect so long as Qualified Processes Personal Data, notwithstanding the expiration or termination of the Agreement.

(b) Annex 1 (EU Annex) to this DPA applies only if, and to the extent, European Data Protection Laws apply to Qualified’s Processing of Personal Data with respect to which Customer is a controller (making Qualified a processor) or processor (making Qualified a subprocessor). Annex 2 (California Annex) to this DPA applies only if, and to the extent, the CCPA applies to Qualified’s Processing of Personal Data with respect to which Customer is a Business (as defined in CCPA).  

3. Customer Instructions

Qualified will Process Personal Data only in accordance with Customer’s instructions. By entering into this DPA, Customer instructs Qualified to Process Personal Data to provide the Services and to perform its other obligations and exercise its rights under the Agreement, including without limitation to (i) carry out the Services or the business of which the Services is a part; (ii) carry out any benefits, rights and obligations relating to the Services; (iii) maintain records relating to the Service; or (iv) comply with any legal obligations relating to the Services.

4. Security

(a) Qualified Security Measures. Qualified will implement administrative, technical and physical controls designed to protect Personal Data against unauthorized access, use, acquisition, loss or disclosure (the “Security Measures”) as described in Annex 2 (Security Measures).  Qualified agrees that it will maintain a SOC2/Type II certification with respect to its Security Measures.   Qualified may update its Security Measures from time to time, provided the updated measures do not decrease the overall protection of Personal Data.

(b) Security Incidents. Qualified will notify Customer of any Security Incident affecting Personal Data stored by Qualified, to the extent required by Data Protection Laws applicable to Qualified. Such notifications will describe available details of the Security Incident, including steps taken to mitigate the potential risks and steps Qualified recommends Customer take to address the Security Incident.  Qualified’s notification of or response to a Security Incident will not be construed as Qualified’s acknowledgement of any fault or liability with respect to the Security Incident.  Qualified shall not be liable or responsible for any Security Incident to the extent it arises out of any act, error or omission of Customer. 

(c) Customer’s Security Responsibilities and Assessment

1. Customer’s Security Responsibilities. Customer agrees that, without limitation of Qualified’s obligations under Section 4 (Security), Customer is solely responsible for its use of the Services, and (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Qualified must use or interact with to provide the Services; and (d) securing and backing up Personal Data in Customer’s care, custody or control.
2. Customer’s Security Assessment. Customer agrees that the Services, the Security Measures and Qualified’s commitments under this DPA are reasonable and adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Personal Data.

5. Data Subject Rights

(a) Qualified’s Data Subject Request Assistance. Qualified will (taking into account the nature of the Processing of Personal Data) provide Customer with the assistance reasonably necessary for Customer to perform its obligations under Data Protection Laws applicable to Customer to fulfill requests by data subjects to exercise their rights under such Data Protection Laws (“Data Subject Requests”) with respect to Personal Data in Qualified’s possession or control. Customer shall compensate Qualified for any such assistance at Qualified’s then-current professional services rates, which shall be made available to Customer upon request.

(b) Customer’s Responsibility for Requests. If Qualified receives a Data Subject Request, Qualified will advise the data subject to submit the request to Customer and Customer will be responsible for responding to any such request. 

6. Customer Responsibilities

(a) No Sensitive Data.  Customer represents and warrants to Qualified that Customer Content does not and will not contain any Sensitive Data, and that Customer shall not provide or make any Sensitive Data available to Qualified for Processing or otherwise.

(b) Use of Anonymized and Aggregated Data. Customer acknowledges and agrees that Qualified may create and derive from data related to Customer’s use of the Services or any Processing related to the Services, anonymized and/or aggregated data that does not identify Customer or any natural person and use, publicize, or share with third parties such data to develop, support, operate and improve Qualified’s Services.

(c) Required Consents and Legal Compliance. Customer represents and warrants to Qualified that Customer has all necessary licenses, rights, disclosures, consents and permissions to collect, share and use Personal Data as contemplated in the Agreement, including without limitation such licenses, rights,  disclosures, consents and permissions necessary for Qualified’s Processing under the Agreement, without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Data Protection Laws or (iii) any terms of service, privacy policies or other agreement.   Customer agrees and consents to the disclosure of Personal Data to, or collection of Personal Data by, third parties in conjunction with the Services, including without limitation IP address, cookie data, device/advertising IDs and page attribute data.  Customer agrees that third parties receiving Personal Data in conjunction with the Services, may use such Personal Data to improve and enrich their scoring models, databases and results, and for other business purposes. Customer agrees to provide relevant individuals with a privacy policy, and disclosures required under Data Protection Laws applicable to Customer that accurately describe the Processing under the Agreement, including without limitation any cookie or tracking ID that Qualified places on Customer Properties as part of the Services, any disclosures of Personal Data to third parties, and third party use of Personal Data related to the Agreement.  As between Customer and Qualified, with respect to Processing by Qualified, Customer will be solely responsible for providing the necessary notices to, obtaining the necessary clearances, consents and approvals from, and satisfying data subject requests related to, individuals with respect to the Processing contemplated under this Agreement.

 (d) Children’s’ Personal Data.  Customer agrees that its Customer Properties are not targeted to, nor does Customer knowingly collect Personal Data from, children under the age of sixteen (16), unless Customer first complies with Data Protection Laws.

7. Miscellaneous

(a) Conflict. Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. To the extent there is any conflict or inconsistency between this DPA and the other terms of the Agreement, this DPA will govern.

(b) Return and Deletion.  Qualified shall, at the expiry or termination of the Contract(s), at Customer’s option, delete or return all Personal Data to Customer, except where Qualified is required to retain copies under applicable law, in which case Qualified will isolate and protect that Personal Data from any further processing except to the extent required by applicable law.

(c) General. Notwithstanding anything in the Agreement or any order form entered in connection therewith to the contrary, the parties acknowledge and agree that Qualified’s access to Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement. Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Qualified to Customer under this DPA may be given (a) in accordance with any notice clause of the Agreement; (b) to Qualified’s primary points of contact with Customer; or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

1. Processing of Data

(a) Subject Matter and Details of Processing. The parties acknowledge and agree that (i) the subject matter of the Processing under the Agreement is Qualified’s provision of the Service; (ii) the duration of the Processing is from Qualified’s receipt of Personal Data until deletion of all Personal Data by Qualified in accordance with the Agreement; (iii) the nature and purpose of the Processing is to provide the Service; (iv) the data subjects to whom the Personal Data pertains are individuals about whom Qualified Processes in connection with the Services; and (v) the categories of personal data are provided by Customer or its users in connection with the Services.  

(b) Roles and Regulatory Compliance; Authorization. The parties acknowledge and agree that (a) Qualified is a Processor of that Personal Data under European Data Protection Laws; (b) Customer is a controller (or a processor acting on the instructions of a controller) of that Personal Data under European Data Protection Laws; and (c) each party will comply with the obligations applicable to it in such role under the European Data Protection Laws with respect to the Processing of that Personal Data. If Customer is a processor, Customer represents and warrants to Qualified that Customer’s instructions and actions with respect to Personal Data, including its appointment of Qualified as another processor, have been authorized by the relevant controller.

(c) Qualified’s Compliance with Instructions. Qualified will only Process Personal Data in accordance with Customer’s instructions stated in this DPA unless European Data Protection Laws require otherwise, in which case Qualified will notify Customer (unless that law prohibits Qualified from doing so on important grounds of public interest).

(d) Data Deletion.  Customer instructs Qualified to delete all Personal Data from Qualified’s systems upon termination of Customer’s access to the Service, unless European Data Protection Laws require otherwise.

2. Data Security

(a) Qualified Security Measures, Controls and Assistance

1. Qualified Security Assistance. Qualified will (taking into account the nature of the Processing of Personal Data and the information available to Qualified) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Personal Data under European Data Protection Laws, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 4(b) (Security Incidents) of the DPA; and (c) complying with this Annex 1.
2. Security Compliance by Qualified Staff. Qualified will grant access to Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality arrangements. 

(b) Reviews and Audits of Compliance

1. Customer may audit Qualified’s compliance with its obligations under this Addendum up to once per year.  In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). Qualified will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.
2. If a third party is to conduct the audit, Qualified may object to the auditor if the auditor is, in Qualified’s reasonable opinion, not suitably qualified or independent, a competitor of Qualified, or otherwise manifestly unsuitable.  Such objection by Qualified will require Customer to appoint another auditor or conduct the audit itself
3. To request an audit, Customer must submit a detailed proposed audit plan to privacy@qualified.com at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration and start date of the audit. Qualified will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Qualified’s security, privacy, employment or other relevant policies). Qualified will work cooperatively with Customer to agree on a final audit plan.  Nothing in this Section 5.4 shall require Qualified to breach any duties of confidentiality.   
4. If the requested audit scope is addressed in a SOC2 Type II, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request, and Qualified confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.  
5. The audit must be conducted at a time that and does not unreasonably interfere with Qualified’s business activities, at the applicable facility, subject to the agreed final audit plan and Qualified’s health and safety, security and other relevant policies.
6. Customer will promptly notify Qualified of any potential non-compliance discovered during the course of an audit and provide Qualified any audit reports generated in connection with the audit, unless prohibited by European Data Protection Laws or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are Confidential Information of the parties under the terms of the Agreement. 
7. Any audits are at Customer’s expense. Customer shall reimburse Qualified for any time expended by Qualified or its Subprocessors in connection with any audits or inspections under this section at Qualified’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
8. The parties agree that this section shall satisfy Qualified’s obligations under the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Subprocessors under Clause 11 and Clause 12(2).

3. Impact Assessments and Consultations

Qualified will (taking into account the nature of the Processing and the information available to Qualified) reasonably assist Customer in complying with its obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Qualified’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this DPA.

4. Data Transfers

(a) Data Processing Facilities. Qualified may, subject to Section 4(b) (Transfers out of the EEA), store and Process Personal Data in the United States or anywhere Qualified or its Subprocessors maintain facilities. 

(b) Transfers out of the EEA. If Customer transfers Personal Data out of the EEA to Qualified in a country not deemed by the European Commission to have adequate data protection, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA and appended hereto as Attachment 1. In furtherance of the foregoing, the parties agree that:

1. for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Qualified will act as the data importer;
2. for purposes of Appendix 1 to the Standard Contractual Clauses, the categories of data subjects, data, special categories of data (if appropriate), and the Processing operations shall be as set out in Section 1(a) to this Annex 1 (Subject Matter and Details of Processing); 
3. for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures; 
4. upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and that data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
5. the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2(b) of this Annex 1 (Reviews and Audits of Compliance) and satisfy the Parties’ rights and obligations under the Standard Contractual Clauses; 
6. Customer agrees that the provisions of Section 4(b) (Security Incidents) satisfy the requirements of the Standard Contractual Clauses between Customer and Qualified under Clause 5(d)(ii).
7. Customer’s authorizations in Section 5 of this Annex 1 (Subprocessors) will constitute Customer’s prior written consent to the subcontracting by Qualified of the Processing of Personal Data if such consent is required under Clauses 5(h) and 11(1) of the Standard Contractual Clauses; and
8. certification of deletion of Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided upon Customer’s request; 

(c) Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply to the extent an alternative recognized compliance standard for the lawful transfer of Personal Data outside the EEA (e.g., binding corporate rules) applies to the transfer. 

5.  Subprocessors

(a) Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Qualified’s Affiliates as Subprocessors and generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”).

(b) Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at: www.qualifed.com/legal/subprocessors (as may be updated by Qualified from time to time) or such other website address as Qualified may provide to customer from time to time (the “Subprocessor Site”).

(c) Requirements for Subprocessor Engagement. When engaging any Subprocessor, Qualified will enter into a written contract with such Subprocessor containing data protection obligations no less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the services provided by such Subprocessor. Qualified shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

(d) Opportunity to Object to Subprocessor Changes. When Qualified engages any new Third Party after the effective date of the Agreement, Qualified will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating Subprocessor Site or by other written means.  If Customer objects to such engagement in a written notice to Qualified within 15 days after being informed of the engagement on reasonable grounds relating to the protection of Personal Data, Customer and Qualified will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement and cancel the Service by providing written notice to Qualified.

6.  Miscellaneous

The total combined liability of Qualified, whether in contract, tort or any other theory of liability, under or in connection with Agreement, this DPA and the Standard Contractual Clauses as described in Annex 1, Section 4 (Transfers out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement;  provided, however, that this section will not affect any party’s liability to data subjects under the third party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by European Data Protection Laws, where applicable. 

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:

________________________________________

Customer as identified in the Agreement (the “data exporter”). 

and

Name of the data importing organisation:

Qualified.com, Inc.

Address: 450 Mission Street, Suite 204, San Francisco, CA 94105

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

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

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

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 subprocessor 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 subprocessor 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 subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(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 subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

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

(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:

1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
   
2. any accidental or unauthorised access, and
3. 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 subprocessing, 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;

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

(j) to send promptly a copy of any subprocessor 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 subprocessor 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 subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any 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 subprocessor 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 subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity.  The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
   

Clause 7: 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 subprocessor, 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 subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2.  In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
   

Clause 9: Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, as set out in Appendix 3 below.

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: Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter.  Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses.  Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law.  Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, as set out in Appendix 3 below.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(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 subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred.  In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor 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.
   

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses

The details of the processing are set out in Section 1(a) to Annex 1 to which these Clauses are appended.

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses

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):

The security measures are set out in Annex 3 to which these Clauses are appended.

1. For purposes of this Annex 2, the terms “business,” “business purpose,” “commercial purpose,” “sell,” and “service provider” shall have the respective meanings given thereto in the CCPA, and “personal information” shall mean Personal Data that constitutes personal information governed by the CCPA.
2. It is the parties’ intent that with respect to any personal information, Qualified is a service provider. Qualified shall not (a) sell any personal information; (b) retain, use or disclose any personal information for any purpose other than for the specific purpose of providing the Service or to perform a business purpose; (c) retain, use or disclose the personal information outside of the direct business relationship between Qualified and Customer. Qualified hereby certifies that it understands its obligations under this Annex 2 and will comply with them.
3. The parties acknowledge that Qualified’s retention, use and disclosure of personal information authorized by Customer’s instructions stated in the DPA are integral to Qualified’s provision of the Services and the business relationship between the parties.

1. Security Staffing and Background Checks. Organizational management and dedicated staff responsible for the development, implementation and maintenance of Qualified’s information security program. Employees are subject to background checks prior to employment. Employees must complete management-approved security training during onboarding and revisit such training annually throughout their tenure.
2. Audit and Risk Assessment. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Qualified’s organization, monitoring and maintaining compliance with Qualified’s policies and procedures, and reporting the condition of Qualified’s information security and compliance to internal management. 
3. Security Controls Data security controls which include, at a minimum, logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of encryption technologies for Personal Data that is transmitted over public networks (i.e. the Internet) or when transmitted wirelessly or at rest or stored on portable or removable media (i.e. laptop computers, CD/DVD, USB drives, back-up tapes).
4. Access Controls.  Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
5. Password Security.  Password controls designed to manage and control password strength, expiration and usage including prohibiting users from sharing passwords and requiring that Qualified’s passwords that are assigned to its employees: (i) be at least eight (8) characters in length, (ii) not be stored in readable format on  Qualified’s computer systems, and (v) newly issued passwords must be changed after first use.
6. System Event Logging.  System audit or event logging and related monitoring procedures to proactively record user access and system activity.
7. Physical Security.  Physical and environmental security of areas containing Personal Data managed by Qualified that are designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of  Qualified’s facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
8. Operational Procedures. Operational procedures and controls designed to provide for configuration, monitoring and maintenance of technology and information systems, including secure disposal of systems and media designed to render data contained therein as undecipherable or unrecoverable prior to final disposal or release from Qualified’s possession.
9. Change Management.  Change management procedures and tracking mechanisms designed to test, approve and monitor all material changes to  Qualified’s technology and information assets.
10. Incident response.  Incident response management procedures designed to allow Qualified to investigate, respond to, mitigate and notify of events related to Qualified’s technology and information assets.
11. Network Security.  Network security controls that utilize firewalls and segregated access, and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
12. Vulnerability Management Processes.  Vulnerability assessment, patch management and threat protection technologies, and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code. Third party vulnerability assessments are conducted periodically and vulnerabilities are remediated as appropriate in accordance with Qualified’s internal risk assessment policies.
13. Business Continuity/Disaster Recovery.  Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergencies or disasters. Qualified Business Continuity and Disaster Recovery procedures (including restoration from backups) are reviewed and tested annually.
14. Policy Review.  Qualified’s security and privacy policies are reviewed and approved annually for Qualified’s business operations.