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Data Processing Agreement for Shipwire Services

DATA PROCESSING AGREEMENT FOR SHIPWIRE SERVICES

Version: June 25, 2018

This Data Processing Agreement (hereafter the “Data Processing Agreement”) applies to Shipwire’s Processing of Personal Data as part of Shipwire’s provision of the Shipwire Services. The Shipwire Services are described in the (i) Shipwire Terms of Service and/or (ii) Master Services Agreement (collectively, the “Shipwire Terms”).

Unless otherwise expressly stated, this version of the Data Processing Agreement is incorporated into and subject to the Shipwire Terms, and shall be effective and remain in force for the term of the Shipwire Services.

Except as expressly stated otherwise in this Data Processing Agreement, in the event of any conflict between the Shipwire Terms, including any policies or schedules referenced therein, and this Data Processing Agreement, the relevant terms of this Data Processing Agreement shall take precedence.

1. DEFINITIONS AND INTERPRETATION

“Annex” means each annex to this Data Processing Agreement which forms part of the agreement.

“Customer” shall have the meaning in the Shipwire Terms.

“Data Subject” means any identified or identifiable person or legal entity (if the case may be under the applicable legislation) to whom Personal Data relates; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, psychological, genetic, mental, economic, cultural and/or social identity of that person.

“Data Controller” or “Controller” means the legal person which alone or in conjunction with others, determines the purposes and means of the Processing of Personal Data, which for the purposes of this Data Processing Agreement is the Customer.

“Data Processing Agreement “or “DPA” means this agreement including the attached Annexes.

“Data Processor” or “Processor” means the entity which Processes Personal Data on behalf of the Controller, which for the purposes of this Data Processing Agreement is Shipwire.

“Data Protection Laws and Regulations” means all applicable laws, directives, ordinances, rules, regulations etc. including but not limited to European or local country laws and regulations, such as the GDPR, and to the extent applicable, the data protection or privacy laws of any country applicable to the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms.

“Data Security Breach” means any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of or access to Personal Data, under this Data Processing Agreement.

“Data Transfer” or “Transfer” means any cross-border communication of Personal Data regardless of the format, any storage of Personal Data on data-bases hosted in different countries, any access to Personal Data hosted in a different country or the use of Personal Data by Third Parties.

“EEA” means the European Economic Area which consists of all countries of the European Union, Liechtenstein, Norway and Iceland.

“GDPR” or “General Data Protection Regulation” means the EU General Data Protection Regulation 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

“Shipwire Terms” means the main agreement for the provision of Services between Controller and Processor.

“Personal Data” means any information relating to an identified or identifiable natural person or legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), received and processed by Processor on behalf of and for Controller or its Clients under this Data Processing Agreement and in course of providing the Services.

“Processing” “Process” or “Data Processing” means any operation or any set of operations concerning Personal Data, such as the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, dissemination, disclosure by means of transmission, distribution or otherwise making available in any other form, merging, linking, as well as restriction, erasure or destruction of data.

“Services” or “Shipwire Services” means all services Processor provides as agreed to in the Shipwire Terms.

“Standard Contractual Clauses” means the contractual clauses set out in Annex 3 of this Data Processing Agreement, pursuant to the European Commission’s decision (C(2010)593) on Standard Contractual Clauses for the Transfer of Personal Data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means any data processor engaged by Processor in the course of providing the Services.

“Supervisory Authority” means an independent public authority established in a particular country responsible for monitoring the compliance with the Data Protection Laws and Regulations within such country, in order to protect the fundamental rights and freedoms of natural persons in relation to processing.

“Third Party” means a natural or legal person, public authority, agency or body other than the Data Subject, Controller, or Processor.

2. GENERAL

2.1 The parties shall at all times comply with the applicable data protection legislation and privacy laws, including without limitation the EU Privacy Directive and the General Data Protection Regulation (“GDPR”). The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller and Shipwire is the Data Processor.

The subject-matter of Processing of Personal Data by the Processor is the performance of the Services pursuant to the Shipwire Terms.

Processor will only Process Personal Data for Controller in accordance with this Data Processing Agreement, the applicable Data Protection Laws and Regulations and with Controller’s written instructions in relation to the Processing of Personal Data as part of providing the Services. Processor agrees and certifies to use the Personal Data for the purposes defined by Controller and for no other purpose. Processor shall at all times treat Controller’s Personal Data under the Shipwire Terms and this Data Processing Agreement as confidential information, subject to the provisions set forth in the Shipwire Terms.

2.2 Processor and Controller will timely provide each other with all necessary information regarding the Processing of Personal Data to enable compliance with the relevant Data Protection Laws and Regulations.

3. PROCESSING OF PERSONAL DATA AND CROSS-BORDER DATA TRANSFER

3.1 Annex 1 contains an overview of categories of Data Subjects, categories of Personal Data and the purposes of Processing Personal Data, under this Data Processing Agreement. Processor shall Process and use the Personal Data for the purposes defined by the Controller as set out in Annex 1.

3.2 Processor will only Process Personal Data on behalf of and in accordance with Controller’s documented instructions in the course of providing the Services under the Shipwire Terms or to comply with legal obligations to which Processor or its affiliated companies are subject. For the avoidance of doubt, Controller will ensure that its instructions for the Processing of Personal Data shall comply with the applicable Data Protection Laws and Regulations. If however, at any time during the execution of this Data Processing Agreement and the Shipwire Terms, Processor establishes that Controller’s instructions appear in any way to be unlawful or non-compliant with the applicable legislation, Processor shall without undue delay notify this to Controller and wait for further instructions.

3.3 In the event a legal requirement prevents Processor from complying with Controller’s instructions or requires Processor to Process the Personal data for a particular purpose or to disclose the Personal Data to a Third Party, Processor shall inform Controller in writing of the relevant legal requirement before carrying out the relevant Processing activities and co-operate with Controller regarding the manner of such disclosure.

3.4 Processor shall not perform cross-border Transfers outside the EEA, disclose or otherwise permit access to the Personal Data to any Third Party for any purpose, without Controller’s prior written consent, unless the Transfer, the disclosure or the access permission are strictly necessary in order to comply with a legal obligation or for the performance of the Services and Processor’s compliance with the terms of this Data Processing Agreement and the Shipwire Terms. Notwithstanding the above, for the Processing of Personal Data outside the EEA, Processor will provide Controller with an overview of the countries in which the Personal Data is Processed or transferred to. Upon signing this Data Processing Agreement, Controller gives its consent for the processing of Personal Data by the Processor or its Sub-processors in the countries included in Annex 1.

3.5 The parties agree and certify that any disclosure, access or Data Transfer outside the EEA, of Controller’s Personal Data under this Data Processing Agreement and the Shipwire Terms, to the Processor, any Sub-processors or Third Parties, will be performed in compliance with the applicable Data Protection Laws and Regulations, the provisions set forth in this Data Processing Agreement and only upon entering into the Standard Contractual Clauses, attached in Annex 3.

3.6 Controller shall not provide or Transfer any Personal Data for Processing by Processor unless, where needed, the Data Subject has given its consent to the Processing of its Personal Data by Processor under the Data Protection Laws and Regulations. Controller acknowledges and agrees that it has the sole responsibility of obtaining all necessary consents for the Processing of Personal Data under this Data Processing Agreement and thereby warrants and represents that where such consent is needed Controller has obtained Data Subject’s consent and upon written request by the Processor copies of such consents will be provided to Processor prior to transferring the Personal Data to Processor.

4. SECURITY OF PERSONAL DATA

4.1 Processor shall maintain all necessary and appropriate technical and organizational security measures to ensure the security, availability, confidentiality and integrity of its computers, other information systems and services, and to protect Personal Data under this Data Processing Agreement, against accidental, unauthorized or unlawful destruction, disclosure, coping, use, loss, alteration, or access or any other form of unlawful or unauthorized Processing in accordance with the applicable Data Protection Laws and Regulations. Processor shall ensure that its systems (including security software and connections) are in compliance with the applicable Data Protection Laws and Regulations, and industry standards.

4.2 Taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the nature of Personal Data as well as the risk and severity for the rights and freedoms of natural persons, Processor warrants that its security measures ensure a level of security appropriate to the risks presented by the Processing of Personal Data. Processor shall maintain such security measures and comply with the Data Protection Laws and Regulations for as long as it is Processing the Personal Data, and this Data Processing Agreement and the Shipwire Terms are not expired or terminated.

4.3 The technical and organizational security measures Processor has implemented are specified in Annex 2 to this Data Processing Agreement. Controller agrees that the measures included in Annex 2 are sufficient to ensure an appropriate level of security of the Personal Data.

5. AUDITS

5.1 Controller has the right, at its own costs, to audit or have an independent third-party auditor, as Controller may from time to time designate in writing, to perform an audit on its behalf in order to audit Processor’s compliance with its obligations under the Data Processing Agreement and the applicable Data Protection Laws and Regulations. Processor shall provide Controller, for the purpose of the audit and upon written request, with all information necessary to demonstrate compliance with Processor’s obligations under this Data Processing Agreement, excluding any information, documents or records relating to the business relations of Processor with any Third Party or the documents or records already audited by the Controller during the last twelve (12) months. Processor shall ensure reasonable cooperation in the performance of the audit and will grant the auditor access to its premises in which Processor is providing Services to Controller.

5.2 Controller may perform such audits no more than once every calendar year and upon providing to Processor a prior written notice of at least 30 business days. Controller shall carry out any inspection at mutually agreeable date, during normal working hours and without interfering with the course of Processor’s business.

5.3 Recommendations and/or required alterations following from the audits will be assessed and applied by Processor after having consulted Controller.

5.4 In case of an investigation by any other competent authority Processor will ensure all reasonable cooperation, inform Controller immediately and shall not disclose any Personal Data without a prior written notification to Controller. The parties shall consult with each other on how to act regarding the investigation.

6. SECURITY BREACHES AND NOTIFICATION

6.1 If the Processor becomes aware of any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of or access to Controller’s Personal Data, the Processor shall notify the Controller without undue delay and as soon as reasonably possible about the Data Security Breach or security incident related to the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms. Processor shall investigate and provide the Controller with sufficient information related to the Data Security Breach in order to allow it to meet any legal obligation to report or inform Data Subjects or the Supervisory Authority of the Data Security Breach under the applicable Data Protection Laws and Regulations.

6.2 In case of a security incident Processor will promptly take adequate measures to mitigate the consequences of the incident and to prevent future incidents. Processor will ensure reasonable cooperation in order to enable the Controller to comply with its legal obligation to notify of Data Security Breaches and to inform Data Subjects and the Supervisory Authority within the time frame provided in the applicable Data Protection Laws and Regulations.

7. DATA SUBJECTS REQUESTS

7.1 Processor shall promptly notify Controller if it receives a request from a Data Subject to exercise its rights of access to, rectification, amendment, restriction of Processing or deletion (“right to be forgotten”), data portability, objection to the Processing of that person’s Personal Data or any other Data Subject request, under any of the applicable Data Protection Laws and Regulations. Processor will not respond to any such Data Subject request without Controller’s prior written consent and in accordance with Controller’s instructions, except to confirm that the request relates to Controller.

7.2 Processor shall provide Controller with all reasonable cooperation and assistance in order to enable Controller to comply with its legal obligations in relation to the handling of Data Subject requests, within the statutory time limits, to the extent that the Processor is legally permitted to do so and provided that such Data Subject Requests are exercised in accordance with the applicable Data Protection Laws and Regulations.

8. SUB-PROCESSOR

8.1 Processor shall not subcontract any of its Processing operations regarding Controller’s Personal Data without the express prior written consent of Controller which consent shall not be withheld in case of a reasonable request. The Parties will include the relevant data of any Sub-processors in Annex 1, and Controller agrees to these Sub-processors by agreeing to the Shipwire Terms.

8.2 Processor shall only subcontract its Processing operations regarding the Personal Data by way of a written agreement signed between the Processor and the Sub-processor which is in accordance with the obligations and restrictions imposed on the Processor by the applicable Data Protection Laws and Regulations and the principles set forth in this Data Processing Agreement.

9. ACCESS TO PERSONAL DATA

9.1 The Personal Data belongs exclusively to Controller. Subject to the remuneration by Controller of the reasonable costs involved, Processor warrants full and continuous access to the Personal Data, also in case of any conflict between the parties for whatever reason.

9.2 Processor shall ensure that its personnel engaged in the Processing of Personal Data under this Data Processing Agreement and the Shipwire Terms, have received appropriate training on their responsibilities, necessary to comply with the terms of this Data Processing Agreement. Processor shall ensure that the access to Personal Data is limited to those personnel who requires such access to perform the Services under this Data Processing Agreement and the Shipwire Terms. Processor certifies to have appointed a data protection officer where such appointment is required by the applicable Data Protection Laws and Regulations.

10. RETURN AND DELETION OF CUSTOMER DATA

10.1 Processor will retain the Personal Data for a duration as instructed by the Controller, and consistent with the retention periods in Annex 1. Processor warrants to return or, to the extent allowed by the applicable laws and in accordance with Controller’s instructions and the terms of this Data Processing Agreement, delete and destroy all Personal Data and any copies of such data after the retention period has lapsed.

10.2 Upon Controller’s request, expiration or earlier termination of this Data Processing Agreement, Processor shall promptly and in any event within thirty (30) days of the date of cessation of any Services involving the Processing of Controller’s Personal Data, return to Controller or delete and procure a certification of destruction of all copies of Controller’s Personal Data that might be in their possession. The return of Controller’s Personal data and all its copies in Processor’s possession shall be completed by secure file transfer in such format as is reasonably requested by Controller to Processor. The parties agree that the Controller will bear all reasonable costs involved in the return or the deletion of the Personal Data.

10.3 The Processor may retain Controller’s Personal Data to the extent required by the applicable laws and for such period as required by the applicable laws. Notwithstanding the above, when retaining Controller’s Personal Data Processor shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is Processed only as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

11. INDEMNIFICATION AND LIABILITY

11.1 In the event any of the parties breaches and fails to comply with the terms and conditions in this Data Processing Agreement, the breaching Party shall be held liable for all damages and costs incurred by the other Party, in accordance with the provisions on liability and damages laid down in the Shipwire Terms.

11.2 Controller shall indemnify and hold Processor harmless from any liability, losses, claims, penalties, damages, costs and expenses of whatever nature, imposed by the Supervisory Authority on Processor and arising out of any claims, actions, proceedings or settlements, resulting from the breach or non-compliance of Controller with the terms and conditions of this Data Processing Agreement and/or with the applicable Data Protection Laws and Regulations.

Processor shall:

(i) promptly notify Controller of any claim, investigation or other circumstances that come to its attention and that may lead to such liability, losses, claims, penalties, damages, costs and expenses to be imposed by the authorities

(ii) act and communicate with the authority and cooperate as may be reasonably required by the Controller at Controller’s cost in settling the claim.

12. TERMINATION
The Data Processing Agreement will be effective as of the date of the execution of the Shipwire Terms and shall remain in force during the term of the Shipwire Terms. This Data Processing Agreement will terminate automatically with the termination or expiry of the Shipwire Terms.

13. MISCELLANEOUS

13.1 In the event of changes in the Services or applicable Data Protection Laws and Regulations which will affect the Processing of the Personal Data and requires the amendment of the Data Processing Agreement in order for the parties to be able to address the requirements and comply with the applicable laws, the parties will consult with each other in good faith in order to amend the Data Processing Agreement. Any amendments to this Data Processing Agreement can solely be made in writing by duly authorized representatives of the parties.

13.2 If any provision of this Data Processing Agreement is found by any court or administrative body of competent jurisdiction to be void, invalid, illegal or otherwise unenforceable, all other terms and provisions of this Data Processing Agreement shall nevertheless remain in full force and effect, and the invalidity or unenforceability of such provision will not adversely affect the enforceability of any other provision of this Data Processing Agreement.

13.3 Any conflict between the provisions of this Data Processing Agreement and the Standard Contractual Clauses set forth in Annex 3, shall be resolved in favor of the Standard Contractual Clauses.

14. APPLICABLE LAW AND JURISDICTION

14.1 This Data Processing Agreement shall exclusively be governed by and construed in accordance with the laws of California.

14.2 Any dispute, controversy or claim arising out of or in connection with this Data Processing Agreement or the breach, termination or invalidity thereof shall be settled and submitted to the competent courts of California.


ANNEX 1

A. Categories of Data Subjects
Processor will process Personal Data regarding the following categories of Data Subjects:
End customers of the Customer

B. Categories of Personal Data
Personal Data processed by Processor will include:
End customer name, address and order information.

C. Purposes of Processing Personal Data
The Personal Data will in any event be processed for the following purposes:
To provide fulfilment services of goods ordered by the end customer

D. Cross-Border Data Transfer and Data Processing
The Personal Data will be processed and transferred to the following countries outside the EEA:
United States

E. Sub-processors
Processor has contracted the following Sub-processors:
Common postal carriers such as UPS, DHL, USPS, etc.

F. Retention Period
During the term of the Shipwire Terms and as required by law

G. Contact details
The contact person regarding this Data Processing Agreement is:

Processor:
Name: Aaron Mendelsohn Shipwire Data Protection Officer
E-mail address: Aaron.Mendelsohn@ingrammicro.com


ANNEX 2
Description of the organizational and technical security measures of the Processor in order to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and all other forms of unlawful Processing in accordance with applicable Data Protection Laws and Regulations.

I. Organization of Information Security.
1) Security Ownership.
Data Processor has appointed one or more security officers responsible for coordinating and monitoring the security rules and procedures.
2) Security Roles and Responsibilities.
Data Processor personnel with access to Personal Data are subject to confidentiality obligations.
3) Risk Management Program.
Data Processor performed a risk assessment before processing the Personal Data.
4) Data Processor retains its security documents pursuant to its retention requirements after they are no longer in effect.

II. Asset Management.
1) Asset Inventory.
Data Processor maintains an inventory of all media on which Personal Data is stored. Access to the inventories of such media is restricted to Data Processor personnel authorized in writing to have such access.
2) Asset Handling.
A. Data Processor classifies Personal Data to help identify it and to allow for access to it to be appropriately restricted (e.g., through encryption).
B. Data Processor imposes restrictions on printing Personal Data and has procedures for disposing of printed materials that contain Personal Data.
C. Data Processor personnel must obtain Data Processor authorization prior to storing Personal Data on portable devices, remotely accessing Personal Data, or processing Personal Data outside Data Processor facilities. This includes removing media (e.g., USB sticks and CD ROMs) and documents containing Personal Data from Data Processor’s facilities.

III. Human Resources Security.
1) Security Training.
A. Data Processor informs its personnel about relevant security procedures and their respective roles. Data Processor also informs its personnel of possible consequences of breaching the security rules and procedures.
B. Data Processor will only use anonymous data in training.

IV. Physical and Environmental Security.
1) Physical Access to Facilities.
Data Processor limits access to facilities where information systems that process Personal Data are located to identified authorized individuals.
2) Physical Access to Components.
Data Processor maintains records of the incoming and outgoing media containing Personal Data, including the kind of media, the authorized sender/recipients, date and time, the number of media and the types of Personal Data they contain.
3) Protection from Disruptions.
Data Processor uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference.
4) Component Disposal.
Data Processor uses industry standard processes to delete Personal Data when it is no longer needed.

V. Communications and Operations Management.
1) Operational Policy.
Data Processor maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Personal Data.
2) Data Recovery Procedures.
A. On an ongoing basis, Data Processor maintains multiple copies of Personal Data from which Personal Data can be recovered.
B. Data Processor stores copies of Personal Data and data recovery procedures in a different place from where the primary computer equipment processing the Personal Data is located.
C. Data Processor has specific procedures in place governing access to copies of Personal Data.
D. Data Processor reviews data recovery procedures at least every six months.
E. Data Processor logs data restoration efforts, including the person responsible, the description of the restored data and which data (if any) had to be input manually in the data recovery process.
3) Malicious Software.
Data Processor has anti-malware controls to help avoid malicious software gaining unauthorized access to Personal Data, including malicious software originating from public networks.
4) Data Beyond Boundaries.
A. Data Processor encrypts Personal Data that is transmitted over public networks.
B. Data Processor restricts access to Personal Data in media leaving its facilities (e.g., through encryption).
5) Event Logging
A. Data Processor logs the use of data-processing systems.
B. Data Processor logs access and use of information systems containing Personal Data, registering the access ID, time, authorization granted or denied, and relevant activity.

VI. Access Control.
1) Access Policy.
Data Processor maintains a record of security privileges of individuals having access to Personal Data.
2) Access Authorization.
A. Data Processor maintains and updates a record of personnel authorized to access Data Processor systems that contain Personal Data.
B. Data Processor deactivates authentication credentials that have not been used for a period of time not to exceed six months.
C. Data Processor identifies those personnel who may grant, alter or cancel authorized access to data and resources.
D. Data Processor ensures that where more than one individual has access to systems containing Personal Data, the individuals have separate identifiers/log-ins.
3) Least Privilege.
A. Technical support personnel are only permitted to have access to Personal Data when needed.
B. Data Processor restricts access to Personal Data to only those individuals who require such access to perform their job function.
4) Integrity and Confidentiality.
A. Data Processor instructs Data Processor personnel to disable administrative sessions when leaving premises Data Processor controls or when computers are otherwise left unattended.
B. Data Processor stores passwords in a way that makes them unintelligible while they are in force.
5) Authentication.
A. Data Processor uses industry standard practices to identify and authenticate users who attempt to access information systems.
B. Where authentication mechanisms are based on passwords, Data Processor requires that the passwords are renewed regularly.
C. Where authentication mechanisms are based on passwords, Data Processor requires the password to be at least eight characters long.
D. Data Processor ensures that de-activated or expired identifiers are not granted to other individuals.
E. Data Processor monitors repeated attempts to gain access to the information system using an invalid password.
F. Data Processor maintains industry standard procedures to deactivate passwords that have been corrupted or inadvertently disclosed.
G. Data Processor uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage.
6) Network Design.
A. Data Processor has controls to avoid individuals assuming access rights they have not been assigned to gain access to Personal Data they are not authorized to access.

VII. Information Security Incident Management.
1) Incident Response Process.
A. Data Processor maintains a record of security breaches with a description of the breach, the time period, the consequences of the breach, the name of the reporter, and to whom the breach was reported, and the procedure for recovering data.
B. Data Processor tracks disclosures of Personal Data, including what data has been disclosed, to whom, and at what time.
2) Service Monitoring.
Data Processor security personnel verify logs at least every six months to propose remediation efforts if necessary.

VIII. Business Continuity Management.
1) Data Processor maintains emergency and contingency plans for the facilities in which Data Processor information systems that process Personal Data are located.
2) Data Processor’s redundant storage and its procedures for recovering data are designed to attempt to reconstruct Personal Data in its original state from before the time it was lost or destroyed.


ANNEX 3
STANDARD CONTRACTUAL CLAUSES

Data Transfer Data Processing Agreement
Standard Contractual Clauses Controller to Processor

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 organization: Customer identified on the Shipwire Terms

(the data exporter)
And

Name of the data importing organization: Shipwire, Inc.

(the data importer)

each a “party”; together “the parties”,

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

Clause 1
Definitions

For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of 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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

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

Clause 3
Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer

The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

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

Clause 7
Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

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

Clause 9
Governing Law

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

Clause 10
Variation of the contract

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

Clause 11
Sub-processing

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

Clause 12
Obligation after the termination of personal data processing services

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

Clause 13
Past Contracts and Effective Date

1. The present agreement shall supercede any previous contracts between the two parties on the same subject matter.
2. The present agreement is effective as of the execution date of the Shipwire Terms.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

See ANNEX 1

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

See ANNEX 2


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