1. Data Protection
1.1 FormAssembly (the data processor) is appointed by Subscriber (the data controller) to process Subscriber Personal Data on behalf of Subscriber (a User, or an Affiliate of Subscriber, as applicable) only as is necessary to provide the Services and as may subsequently be agreed by the parties in writing.
1.2 Each party shall comply with its respective obligations under the Data Protection Laws as a data controller or a data processor (as applicable) in respect of the processing of Subscriber Personal Data under or in relation to the Agreement.
1.3The categories of Subscriber Personal Data to be processed by FormAssembly and the processing activities to be performed under this Agreement are set out in Schedule 1. Subscriber has sole responsibility for the accuracy, quality and legality of Subscriber Personal Data and warrants and represents that:
- it has complied with its obligations under the Data Protection Laws in respect of the collection, use, and transfer of Subscriber Personal Data and will identify and inform FormAssembly of any other data controller in respect of the Subscriber Personal Data;
- it is able to document and evidence its compliance with its obligations under the Data Protection Laws;
- no Subscriber Personal Data provided or transferred to FormAssembly constitutes a special category of Personal Data pursuant to Article 9 of the GDPR or Personal Data relating to criminal convictions and offences pursuant to Article 10 of the GDPR;
- it is authorized to give instructions and otherwise act on behalf of its Users or Affiliates in relation to such Subscriber Personal Data and to bind its Users or Affiliates to the terms of this Exhibit; and
- the quantity of Subscriber Personal Data provided to FormAssembly is the minimum necessary for the performance of the Services pursuant to the Agreement.
1.4 FormAssembly agrees in respect to Subscriber Personal Data that it shall, in all material respects:
- only process Subscriber Personal Data in accordance with this Exhibit and the Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing), unless required to do otherwise by EU law or the national law of an EU member state to which FormAssembly is subject. In which event, FormAssembly shall inform Subscriber of the legal requirement before processing Subscriber Personal Data other than in accordance with Subscriber’s instructions, unless that applicable law prohibits FormAssembly from doing so. If FormAssembly believes that any instruction received by it from Subscriber is likely to infringe the Data Protection Laws it shall promptly notify Subscriber and shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions such that the relevant Services are not infringing;
- implement, maintain, and comply with the minimum security requirements set out in Schedule 3. Subscriber agrees that FormAssembly may from time to time, upon reasonable prior written notice, change the minimum security requirements set out in Schedule 3, provided that any such changes do not materially reduce the level of security and protection for Subscriber Personal Data required pursuant to clause 1.4.7;
- not publish, disclose, or divulge Subscriber Personal Data to a third party unless Subscriber has given its prior written consent;
- ensure that only those FormAssembly personnel who may be required by FormAssembly to assist FormAssembly in meeting its obligations under this Agreement will have access to Subscriber Personal Data, that such FormAssembly personnel, prior to such access, meet and remain in compliance with the requirements detailed in the Privacy and Confidentiality of Information section of the Agreement, and take reasonable steps to ensure the reliability of such FormAssembly personnel;
- at Subscriber’s cost and taking into account the nature of the processing, provide reasonable cooperation to Subscriber to allow Subscriber (or an Affiliate of Subscriber to comply with its obligations as a Data Controller; and
- at the Subscriber’s cost and the Subscriber’s option, following the end of the provision of Services pursuant to the Agreement, either return or delete all Subscriber Personal Data in the possession or control of FormAssembly, except to the extent that any applicable law requires FormAssembly to store or retain copies of such Subscriber Personal Data. For the avoidance of doubt, this requirement to return or delete Subscriber Personal Data shall not apply to Subscriber Personal Data which is archived on FormAssembly’s back-up systems; and
- provide an adequate level of security and protection for Subscriber Personal Data in accordance with the requirements of the Data Protection Laws.
1.5 FormAssembly may appoint third parties to process Subscriber Personal Data (“Subprocessors”) subject to FormAssembly:
- providing reasonable prior notice to Subscriber of the identity and location of the Subprocessor and a description of the intended processing to be carried out by the Subprocessor reasonably sufficient to enable Subscriber to evaluate any material risks to Subscriber Personal Data; and
- imposing legally binding contract terms on the Subprocessor which are the same as those contained in this Exhibit including the referenced Schedules.
1.6 Within 30 days of being informed of the appointment of the new Subprocessor, Subscriber may object to the appointment in writing to FormAssembly. If Subscriber objects, FormAssembly shall use its reasonable endeavors to resolve Subscriber’s objection. If Subscriber’s objection cannot be reasonably accommodated, either party may terminate the Agreement upon 30 days’ prior written notice. This is Subscriber’s sole and exclusive remedy.
1.7 Subscriber authorizes the appointment of the Subprocessors listed:
- Amazon Web Services.
1.8 FormAssembly acknowledges and agrees that it shall remain liable to Subscriber for a breach of the terms of this Agreement by a Subprocessor appointed by it.
1.9 FormAssembly shall, in accordance with the Data Protection Laws, make available to Subscriber upon reasonable request such information that is in FormAssembly’s possession or control as is necessary to demonstrate FormAssembly’s compliance with this Exhibit (including the referenced Schedules) and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28).
1.10 Subject to a maximum of one audit request in any 12 month period, FormAssembly shall, upon reasonable prior notice, allow for and contribute to audits conducted by Subscriber (or another auditor mandated by Subscriber) for the purpose set out in Section 1.9, provided Subscriber (or such other auditor mandated by Subscriber) are bound by appropriate obligations of confidentiality. For the purpose set out in Section 1.9, Subscriber may perform an on-site audit, at its own expense, if and only if (a) FormAssembly notifies Subscriber of a Security Breach, (b) Subscriber reasonably believes FormAssembly is not in compliance with its data security obligations under this Exhibit including the referenced Schedules, or (c) an on-site audit is required by the Data Protection Laws. To extent permissible under the Data Protection Laws, FormAssembly may satisfy an audit request by providing Subscriber with a copy of an independent audit report (which may be redacted as reasonably necessary to ensure confidentiality).
2. Security Breaches
FormAssembly shall notify Subscriber without undue delay of becoming aware of any confirmed accidental, unauthorized, or unlawful destruction, loss, alteration, or disclosure of, or access to, Subscriber Personal Data (“Security Breach”).
At Subscriber’s cost, FormAssembly agrees to provide such assistance reasonably required by Subscriber to enable Subscriber to respond to any request, complaint, or binding instruction that is received from: (a) any living individual whose Personal Data is processed by FormAssembly on Subscriber’s behalf; (b) any regulator or data protection authority; (c) any independent recourse mechanism that Subscriber elects to adopt under the Privacy Shield or any arbitration panel set up under the Privacy Shield Framework.
4. Data Transfers
4.1 FormAssembly shall not process Subscriber Personal Data outside the EEA (including by way of remote access) without the prior written consent of Subscriber.
4.2 Subscriber hereby consents to Subscriber Personal Data being processed outside the EEA, subject to FormAssembly’s compliance with Section 4.3 and Section 4.4 below throughout the duration of the Agreement.
4.3 To the extent that Subscriber Personal Data is processed outside the EEA and/or Switzerland,
- the terms of the transfer shall be governed by the standard contractual clauses for the transfer of personal data to processors, approved by Commission Decision C(2010)593, or any replacement clauses approved by the Commission from time to time (the “EU Model Clauses”) attached as Schedule 2, which are hereby incorporated into this Agreement. The parties acknowledge and agree that Subscriber is entering into the EU Model Clauses on its own behalf and on behalf of the other Affiliates of Subscriber. FormAssembly further agrees to enter into the EU Model Clauses with any other Affiliates of Subscriber on request.
4.4 If, for whatever reason, the transfer of Subscriber Personal Data under Section 4.3 above ceases to be lawful, the parties shall use reasonable endeavors to promptly implement an alternative lawful transfer mechanism.
5.1 Each party’s liability for one or more breaches of this Exhibit shall be subject to the limitations and exclusions of liability set out in the Agreement. In no event shall either party’s liability for a breach of this Exhibit exceed the liability cap set out in the Agreement.
5.2 Neither party limits or excludes any liability that cannot be limited or excluded under applicable law.
6. General Terms
6.1 Nothing in this Exhibit reduces FormAssembly’s obligations under the Agreement in relation to the protection of Subscriber Personal Data or permits FormAssembly to process (or permit the processing of) Subscriber Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Exhibit and the EU Model Clauses, the EU Model Clauses shall prevail.
6.2 Subject to Section 6.1, with regard to the subject matter of this Exhibit, in the event of inconsistencies between the provisions of this Exhibit and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Exhibit, the provisions of this Exhibit shall prevail.
6.3 Either party may by at least 30 calendar days’ written notice to the other from time to time propose any variations to this Exhibit which that party reasonably considers to be necessary to address the requirements of the Data Protection Laws. If such notice is given, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the notice as soon as reasonably practicable.
7.1 “Affiliate” means any entity in which the party owns, either directly or indirectly, more than 50% of the equity interest or voting stock, or equivalent, in such entity, or controls, is controlled by or under common control with such entity, whether such entity is now existing or subsequently created or acquired during the term of the Agreement,
7.2 The terms “Data Controller”, “Data Processor”, “Personal Data”, “data subject”, “supervisory authority”, “process” and “processing” have the meanings given to them under all applicable Data Protection Laws from time to time.
7.3 “Data Protection Laws” means any applicable law relating to the processing, privacy and use of Personal Data, as applicable to either party or the Services, including:
- he EU Data Protection Directive (95/46/EC) and/or the EU General Data Protection Regulation (2016/679) (“GDPR”) and/or the UK Data Protection Act 1998;
- any laws which implement any such laws in each applicable jurisdiction; and
- any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
7.4 “Subscriber Personal Data” means any Personal Data processed by FormAssembly (and its Subprocessors (if applicable)) on behalf of the Subscriber or its Affiliates pursuant to or in connection with the Agreement.
7.5 “Privacy Shield” means the EU-US Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of July 12, 2016.
7.6 “Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded, or replaced).
Schedule 1: Description of Personal Data Processing
The data processing activities carried out by FormAssembly under this Agreement may be described as follows:
1. Subject Matter
1.1 Provide a brief description of the subject matter of the processing, i.e. the subject matter of the Service Agreement as it involves personal data (e.g. the provision of IT support, hosting services, payroll)
2.1Data processing will be for the period from the Agreement’s Effective Date, until the end of FormAssembly’s provision of services.
3. Nature and Purpose
3.1 Describe the type of processing and its purpose(s), e.g. hosting, analysis for the purposes of tailored content, disaster recovery. There will be some overlap with the “Subject Matter”, but should include more detail here.
4. Data Categories
4.1 Insert the categories of personal data which are subject to the processing, e.g. cell phone numbers, IP addresses, photographs, communications data.
The Personal Data transferred concern the following categories of data:
5. Data Subjects
5.1 Insert the categories of data subjects who are subject to the processing, e.g. users, employees.
Schedule 2: EU Model 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
The Subscriber’s legal entity accepting the Clauses
(the data exporter)
885 S College Mall Rd, #399
Bloomington, Indiana 47401 USA
(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.
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.
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.
Third-party beneficiary clause
- 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.
- 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.
- 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.
- 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.
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).
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;
that it will promptly notify the data exporter about:
(e) 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,
(f) any accidental or unauthorised access, and
(g) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(h) 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
(i) 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;
(j) 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;
(k) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(l) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(m) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- 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.
- 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.<
- 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.
Mediation and jurisdiction
- 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.
- 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.
Cooperation with supervisory authorities
- 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.
- 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.
- 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- 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.
- 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.
- 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.
- 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.
Obligation after the termination of personal data processing services
- 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.