Personal Data Processing Annex-ITX Services Global

Other territories: Non-EU/EEE – Non-Adequate Countries

This Personal Data Processing Annex (the “DPA Annex”) to the international telecommunications agreement (the “Agreement”) further regulates the processing of personal data according to the provisions of the Agreement and to the Data Protection Legislation (the “Data Protection Legislation”), such as Regulation (EU) 2016/679 (the “GDPR”).

The respective provision of Services as defined in the Agreement requires to the Parties to process certain personal data on behalf of the other Party, who may act respectively as a Controller or as a Processor of Personal Data.

As a result, the Parties have entered into this DPA Annex according to the Article 28 of the GDPR and agree as follows:

Article 1. Subject matter

This DPA Annex governs the processing of Personal Data by the respective Party as a Processor (when exercising the position of service provider) for and on behalf of the other Party as a Controller (when exercising the position of recipient of services), according to the Controller’s instructions, in connection with the provision of the services defined in the Agreement and with the Data Categories and Data Subjects specified therein.

Article 2. Definitions

Personal Data means any information relating to an identified or identifiable natural person (hereinafter “Data Subject”) in connection of the telecommunication services rendered, which includes phone numbers (sender and recipient) and depending on each individual case, may also include first name, last name, address, personal identification number, location data, IP addresses, contact information, and other relevant Personal Data.

The Controller is the party that, as far as a specific service is concerned and in accordance with the Agreement, occupies the position of recipient of the service and, consequently, assigns certain personal data to the Processor to the extent necessary to receive the contracted service and is responsible for the correct handling of the personal data.

The Processor is the party that, as far as a specific service is concerned and in accordance with the Agreement, occupies the position of service provider and, consequently, receives certain personal data from the Controller in order to comply with the service correctly The Processor only processes personal data according to the instructions of the Controller.

The Sub-processor is the contractual partner of the Processor, engaged to carry out specific processing activities on behalf of the Controller.

Effective Date means the date on which the Agreement was validly executed by both Parties.

Terms such as “processing”, “data controller”, “data processor”, “data subject”, “personal data breach” etc. will have the meaning attributed to them under the Data Protection Legislation.

Article 3. Term of the DPA Annex

This DPA Annex shall be effective as of the Effective Date and shall continue in full force as long as it will be necessary for billing purposes and/or to render the services under the Agreement, unless otherwise provided by mandatory law or agreed between the Parties.

Any material breach of the provisions of this DPA Annex shall entitle the Parties to terminate it and the Agreement for good cause without notice.

Notwithstanding the foregoing, the Parties expressly agree that the termination of the Agreement for any reason shall result in the automatic resolution of this DPA Annex.

Article 4. Obligations of the Processor

The Processor warrants that it will only process the Personal Data in such manner as – and to the extent that – this is necessary for the performance of the services under the service agreement, except as it is required to follow instructions of the Controller, or to comply with a legal obligation to which the Processor is subject to, in which case the Processor will notify the Controller of such legal obligations, unless notification is prohibited due to important grounds of public interest.

The Processor shall inform the Controller without undue delay about all cases of severe operational interruptions, suspected breaches of data protection obligations or other irregularities in connection with the processing of the Controller’s data.

The Processor shall inform the Controller without undue delay and within a maximum of 48 hours after becoming aware of personal data breaches relating to the Controller´s data and assist the Controller in ensuring compliance with its obligations pursuant to Articles 33 and 34 GDPR taking into account the nature of processing and the information available to it. The Processor shall take necessary measures for securing the data and for mitigating any risks for the data subjects and shall align these measures with the Controller without undue delay.

The Processor shall inform the Controller without undue delay about current communications between supervisory authorities and the Processor to the extent that the data processing under this DPA Annex is concerned. The Processor shall inform the Controller without undue delay about orders, investigations and other actions by the supervisory authorities.

In this regard, the Processor shall support the Controller in case of data protection checks carried out by supervisory authorities and shall, to the extent the commissioned processing is concerned, implement any orders of supervisory authorities in coordination with the Controller.

The Processor shall provide information to third parties and supervisory authorities only upon prior consultation with the Controller.

The Processor will immediately inform the Controller in writing, including e-mail, if the Processor sees that an instruction of the Controller is in violation of, or causes a breach with this Agreement or applicable legislation, including – but not limited to – the GDPR.

The Controller guarantees that it processes the Personal Data used by the Processor to render the services in accordance with all applicable data protection laws, including – but not limited to – the GDPR.

The Processor shall support the Controller at no cost in responding to requests for exercising the data subject’s rights laid down in Chapter III GDPR (e.g. rights of access, of rectification or erasure of data or of restriction of processing) to a reasonable extent and, whenever possible, by appropriate technical and organizational measures. In these cases, the Processor shall pass on to the Controller the request of the data subject without undue delay and no later than the following working day that on which the request of data subject has been received, jointly with the necessary information to solve the request.

The Processor shall assist the Controller in ensuring compliance with the obligations pursuant to Articles 35 and 36 GDPR regarding data protection impact assessment and prior consultations taking into account the nature of processing and the information available to it.

The Processor is obliged to provide the Controller with the records of processing activities pursuant to Article 30.2 GDPR in connection with the services provided by the Processor and to the extent necessary for the Controller to fulfill its obligations under Article 30.1 GDPR.

The Parties acknowledge and agree that engaging carriers is necessary for the performance of the Services. Accordingly, the Processor has to ensure that any other processor it engages (i.e. sub-processor) assumes the same data protection obligations as set out in the contract between the Processor and the Controller by a written contract, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements under the GDPR.

The Controller consents to the Processor to engage further processors (sub-processors) for carrying out specific processing activities on behalf of the Controller, under the condition that the Processor impose the same data protection obligations as set out in this DPA Annex on that other processors, to the extent applicable to the nature of the services provided by such Sub-processor, by way of a written contract or other legal act according to the Data Protection Legislation. In accordance with the nature of the Services, the Processor shall provide the Controller with all necessary information regarding such contracts with sub-processors upon legal request of the competent Authorities.

The Processor further undertakes to indemnify the Controller from liability claims asserted by data subjects and from administrative penalties imposed upon the Controller if and to the extent that such claims or penalties root in breaches of the Processor’s duties pursuant to this DPA Annex and/or in accordance with the GDPR. Until proof to the contrary has been furnished by the Processor, it shall be assumed that Processor is in breach of its duties.

The Processor shall be also liable for fault of its subcontractors to the same extent as it is liable for its own fault.

The Processor shall promptly inform the Controller if it considers that any of its instructions may be against the applicable Laws.

Article 5. Responsibility and rights of the Controller

Within the scope of the GDPR, the Controller shall be responsible for the permissibility of the data processing, including the disclosure of data to Processor, and for safeguarding the data subject’s rights.

The Controller is entitled to give instructions on the nature, scope and procedure for the data processing and on the handling of rights exercised by data subjects (e.g. with respect to the rectification or erasure of data or the restriction of processing).

In addition to the instructions contained in this DPA Annex, the Controller is entitled to give new and/or amended instructions to the Processor at any time during the term of the Agreement. Any instructions shall be given in writing or electronically by e-mail but instructions given orally will be valid and shall be confirmed in writing or electronically by e-mail without delay.

Article 6. Security Measures

The Parties shall implement appropriate technical and organizational measures to protect and safeguard the Personal Data. These measures shall include, but are not limited to:

  1. Pseudonymize and encrypt Personal Data.
  2. Prevent unauthorized access to the Personal Data.
  3. Ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services.
  4. Restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident.
  5. Apply a process for regular testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
  6. Add password protection on computer systems on which Personal Data is stored and ensuring that only authorized personnel are given details of the password.
  7. Take reasonable steps to ensure the reliability of employees or other individuals who have access to the Personal Data; ensure that access to the Personal Data is limited to employees or other individuals who need access to the Personal Data to meet the Customer’s obligations.
  8. Have in place methods for detecting and dealing with breaches of security (including loss, damage or destruction of Personal Data).
  9. Have a secure method of disposal of unwanted Personal Data including for back-ups, disks, print outs and redundant equipment.
  10. Parties shall comply at all times with the Data Protection Legislation (including GDPR) and shall not perform its obligations under this Agreement or any other agreement or arrangement, or process Personal Data, in such way to breach any of its applicable obligations under the Data Protection Legislation (including GDPR).

In the case it is stated in the Agreement that some of the Parties subcontract all or part of its obligations in relation to transit services to its affiliates, it shall ensure that these measures shall be fully implemented by that Party itself and by their affiliates, being in any case guaranteed that the processing of the Personal Data takes place according to the appropriate level of security.

Article 7. Confidentiality

Without prejudice to any existing contractual arrangements between the Parties, the Processor guarantees that it shall treat all Personal Data as strictly confidential. The Processor shall ensure that all persons or parties (employees, agents and other persons involved in the processing of Personal Data) have signed and are bound by an adequate confidentiality agreement and/or are under any other binding obligation of confidentiality.

The Processor is not violating this obligation if and when, such disclosure is mandatory under applicable law or if and when, the data subject has published its Personal Data in public.

Article 8. Audit

In order to confirm compliance with this DPA Annex, the Controller shall be at liberty to conduct an audit by assigning an independent third party who shall be obliged to observe confidentiality in this regard. Any such audit will follow the Processor’s reasonable security requirements and will not interfere unreasonably with the Processor’s business activities.

The audit may only be undertaken when there are specific grounds for suspecting the misuse of personal data, and no earlier than two weeks after the Controller has provided written notice to the Processor.

The findings in respect of the performed audit will be discussed and evaluated by the Parties and, where applicable, implemented accordingly as the case may be by one of the Parties or jointly by both Parties. Each party shall be responsible for its own audit costs. If it is proven, after an audit, that the Processor has not complied with any of its obligations under this DPA Annex, the Processor shall assume all costs of the audit and shall immediately rectify the breach by assuming the associated costs.

Article 9. Subcontractors

The Parties acknowledge and agree that engaging international carriers is necessary for the performance and quality of the telecommunications Services. Accordingly, the Processor is authorized without further formality and without prior notification to subcontract part of the services provided that these subcontractors have been chosen diligently and in particular in consideration of their suitability under Data Protection Legislation and of the appropriateness of the technical and organizational measures implemented by the subcontractors pursuant to the requirements of Article 32 GDPR.

The subcontractor may only access the Controller’s data upon the Processor and its subcontractor having entered into an agreement through which the subcontractor assumes all the obligations set forth in this DPA Annex for the Processor. In such agreement Processor’s and the subcontractor’s responsibilities shall be distinguished clearly from each other.

The Controller may object the engagement of a subcontractor for justified reasons, in particular if a subcontractor has breached its duties and/or the protection of the data is at risk.

In this regard, when either Party holds the position of Processor, it may subcontract part of the transit services entrusted under the Agreement to some affiliates, which shall hold the position of Sub-processors, provided it is expressly stated in the Agreement this is accepted by the Controller, who gives his express consent.

Article 10. International Data Transfers

Unless otherwise agreed with the Controller in writing, the Processor shall ensure that Personal Data are stored and processed at the processing systems located in its data centres within European Economic Area (EEA), and any transfer of Personal Data to the Processor’s data centres located outside the European Union or European Economic Area (EEA) can be made only upon such an instruction of the Controller or its prior written approval.

Where the performance of the Services involves a transfer of Personal Data outside the European Economic Area (EEA), the Processor will take such steps as may be required to ensure there is adequate protection for such Personal Data in accordance with the Data Protection Legislation (especially Articles 44 to 49 of the GDPR), which may include entering into the Standard Contractual Clauses set out in the European Commission’s Decision 2010/87/EU.

The Parties acknowledge and agree that engaging international carriers is necessary for the performance and quality of the telecommunication Services. The Controller hereby grants its consent to the Processor to take any measures, to establish and ensure an adequate level of data protection in the transfer of Personal Data to a sub-processing party outside the EEA. Accordingly, as Carrier is established in Non-EU/EEE – Non-Adequate Country, the Standard Contractual Clauses (https://ec.europa.eu/info/law/law-topic/dataprotection/international-dimension-data-protection/standard-contractual-clauses-scc_en) shall be applicable as stated in the Schedule A of this DPA Annex and the Processor is also entitled to conclude such clauses on behalf of the Controller where applicable.

Article 11. Erasure of data

Once the provision of the services rendered by virtue of the Agreement has been completed or upon the Controller’s request, the Processor must destroy any document that have come into its possession, any processing and usage results prepared as well as any data and data sets connected to the contract relationship in line with Data Protection Legislation and in accordance with the instructions of the Controller.

Notwithstanding the foregoing, after termination of the Agreement and/or this DPA Annex, documentation serving to furnish proof of proper data processing in accordance with the service relationship and documentation legally required shall be retained by the Processor in line with the applicable retention periods.

Article 12. Notices

All notices, requests, demands and other communications, which are required or may be given pursuant to the terms of this DPA Annex, shall be in the English language.

Any notification that occurs between the parties will be in writing and shall be delivered personally or in any other way that certifies reception by the party notified at the respective addresses indicated in the Agreement.

Either party may request an acknowledgement of receipt for any notice, demand or communication. Such acknowledgment of receipt shall be effective once such notice, demand or communication is returned signed by the receiving party by means of scanned facsimile copy.

Article 13. Other

This DPA Annex is part of the Agreement and it is agreed between the Party’s on each Party’s own behalf, and on behalf of and for the benefit of each Party’s Affiliates. Each Party is entitled to enforce any and all of the provisions of the DPA Annex against the other Party’s Affiliates as though those entities were a Party to this DPA Annex, to the extent such Affiliate process Personal Data (as defined below). For purposes of the DPA Annex, “Party” also means each of its corresponding Affiliates, unless explicitly provided otherwise.

IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have caused this document to be executed by their authorized representatives as follows.

Andres Proano

EVP and CFO
Business Telecommunications Services Inc.

Miami, Florida

Luis Fernando Villacampa

Legal Representative
Business Telecommunications Services Europe S.A

Zaragoza, Spain

Carrier has acknowledged and explicitly agreed with this DPA Annex as expressly stated in the signed Agreement.

Schedule A to the DPA Annex

STANDARD CONTRACTUAL CLAUSES

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 (https://ec.europa.eu/info/law/law-topic/dataprotection/international-dimension-data-protection/standard-contractual-clausesscc_en )

The Parties HAVE AGREED on the following Standard Contractual Clauses (hereinafter, 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 the Agreement.

Clause 1
Definitions

For the purposes of the Clauses:

  1. ‘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;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘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;
  4. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘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;
  6. ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 the Agreement which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the 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:

  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Article 6 of this DPA Annex;
  4. 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, unauthorized 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, 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
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:

  1. 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;
  2. 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;
  3. that it has implemented the technical and organizational security measures specified in Article 6 of this DPA Annex before processing the personal data transferred;
  4. 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 unauthorized access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
  5. 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;
  6. 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;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, 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;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

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

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:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

The Clauses shall be governed by Spanish law.

Clause 10
Variation of the contract

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

Clause 11
Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the 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 sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by Spanish law.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12
Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in the DPA Annex.