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DATA PROCESSING ADDENDUM
Last Revised: 27/09/2021
This Data Processing Addendum (the “Addendum”) is executed by and between Fastispeed.com, LLC, a Delaware limited liability company and its Affiliates (“Fastispeed”) and you (“Customer”) and is annexed to and supplements our Universal Terms of Service, Privacy Policy and any and all agreements governing Covered Services (collectively, the “Terms of Service”). Unless otherwise defined this Addendum, all capitalized terms not defined in this Addendum will have the meanings given to them in the Terms of Service.
1. Definitions
“Affiliates” means any entity which is controlled by, controls or is in common control with Fastispeed.
“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this Data Processing Addendum.
“Covered Services” means hosted services that could involve our Processing of Personal Data and are subject to the terms and conditions of the following Agreements: (1) Email Marketing Services, (2) Hosting, (3) Online Store/Quick Shopping Cart, (4) Website Services, (5) Workspace Service.
“Customer Data” means the Personal Data of any Data Subject Processed by Fastispeed within the Fastispeed Network on behalf of Customer pursuant to or in connection with the Terms of Service.
“Data Controller” means the Customer, as the entity which determines the purposes and means of the Processing of Personal Data.
“Data Processor” means Fastispeed, as the entity which Processes Personal Data on behalf of the Data Controller, or the services provider as such term is defined by CCPA
“Data Protection Laws” means all data protection or privacy laws and regulations applicable to the Processing of Personal Data under the Agreement, including the (i) the Australian Privacy Principles and the Australian Privacy Act (1988), (ii) Brazil’s Lei Geral de Proteção de Dados (LGPD), (iii) the California Consumer Privacy Act (CCPA), (iv) Canada’s Federal Personal Information Protection and Electronic Documents Act (PIPEDA), (v) the European Union’s General Data Protection Regulation (GDPR), (vi) any national data protection laws made under or pursuant to the GDPR (vii) the EU e-Privacy Directive (Directive 2002/58/EC), (viii) Singapore’s Personal Data Protection Act 2012 (PDPA), (ix) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance, (x) UK GDPR or Data Protection Act 2018; in each case as may be amended, superseded or replaced.
“Data Subject” means the individual to whom Personal Data relates.
“EEA” means the European Economic Area.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Fastispeed Network” means Fastispeed’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within Fastispeed’s control and are used to provide the Covered Services.
“Personal Data” means any information relating to an identified or identifiable person or household as defined under Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Process”, “processes” and “processed” will be interpreted accordingly. Detail of Processing are set forth in Appendix 1.
“Security Incident” either (a) a breach of security of the Fastispeed Security Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Data; or (b) any unauthorized access to Fastispeed equipment or facilities, where in either case such access results in destruction, loss, unauthorized disclosure, or alteration of Customer Data.
“Security Standards” means the security standards attached to this Addendum as Appendix 2.
“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law or regulation relating to privacy and data protection.
“Standard Contractual Clauses” or “SCCs” means the standard data protection clauses for the transfer of personal data from a controller to a processor established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR and approved by the European Commission decision 2021/914 of 4 June 2021. Module Two (Controller to Processor) Standard Contractual Clauses are in Appendix 4.
“Sub-processor” means any Data Processor engaged by Processor to Process data on behalf of Data Controller.
“UK Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the UK GDPR and approved by the European Commission decision 2010/87/EU. The UK Standard Contractual Clauses are in Appendix 4.
2. Data Processing
2.1 Scope and Roles. This Addendum applies when Customer Data is processed by Fastispeed where Fastispeed acts as the Data Processor on behalf of the Customer as the Data Controller with respect to Customer Data.
2.2 Details of Data Processing. The subject matter of processing of Customer Data by Fastispeed is the performance of the Covered Services pursuant to the Terms of Service. Fastispeed shall only Process Customer Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Terms of Service; (ii) Processing initiated by end users in their use of the Covered Services; (iii) Processing to comply with other documented, reasonable instructions provided by Customers (ex. via email) where such instructions are consistent with the Terms of Service. Fastispeed shall not: (a) Process, retain, use, sell, or disclose Customer Data except as necessary to provide Covered Services pursuant to the Terms of Service, or as required by law; (b) sell such Customer Data to any third party; (c) retain, use, or disclose such Customer Data outside of the direct business relationship between Fastispeed and Customer.
For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with all applicable data privacy laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Fastispeed shall not be required to comply with or observe Customer’s instructions if such instructions would violate Data Protection Laws. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this Addendum are further specified in Appendix 1 (‘Details of the Processing’) to this Addendum.
3. Confidentiality of Customer Data
Fastispeed will not disclose Customer Data to any government or any other third party, except as necessary to comply with the law or a valid and binding order of a law enforcement agency (such as a subpoena or court order). In the event Fastispeed receives a valid civil subpoena, and to the extent permitted, Fastispeed will endeavor to provide Customer with reasonable notice of the demand via email or postal mail to allow Customer to seek a protective order or other appropriate remedy.
4. Security
4.1 Fastispeed has implemented and will maintain the technical and organizational measures for the Fastispeed Network as described herein this Section and as further described in Appendix 2 to this Addendum, Security Standards. In particular, Fastispeed has implemented and will maintain the following technical and organizational measures that address the (i) security of the Fastispeed Network; (ii) physical security of the facilities; (iii) controls around employee and contractor access to (i) and/or (ii); and (iv) processes for testing, assessing and evaluating the effectiveness of technical and organizational measures implemented by Fastispeed. In the event that we are not able to meet any of its obligations set forth herein, we will provide written notice (via our website and email) as soon as practically feasible.
4.2 Fastispeed makes available a number of security features and functionalities that Customer may elect to use in relation to the Covered Services. Customer is responsible for (a) properly configuring the Covered Services, (b) using the controls available in connection with the Covered Services (including the security controls) to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (c) using the controls available in connection with the Covered Services (including the security controls) to allow the Customer to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (d) taking such steps as Customer considers adequate to maintain appropriate security, protection, and deletion of Customer Data, which includes use of encryption technology to protect Customer Data from unauthorized access and measures to control access rights to Customer Data.
5. Data Subject Rights
Taking into account the nature of the Covered Services, Fastispeed offers Customer certain controls as described in the “Security” section of this Addendum that Customer may elect to use to retrieve, correct, delete or restrict use and sharing of Customer Data as described in the Covered Services. Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under applicable privacy laws, including its obligations relating to responding to requests from Data Subjects. As commercially reasonable, and to the extent lawfully required or permitted, Fastispeed shall promptly notify Customer if Fastispeed directly receives a request from a Data Subject to exercise such rights under any applicable data privacy laws (“Data Subject Request”). In addition, where Customer’s use of the Covered Services limits its ability to address a Data Subject Request, Fastispeed may, where legally permitted and appropriate and upon Customer’s specific request, provide commercially reasonable assistance in addressing the request, at Customer’s cost (if any).
6. Sub-Processing
6.1 Authorized Sub-processors. Customer agrees that Fastispeed may use Sub-processors to fulfil its contractual obligations under its Terms of Service and this Addendum or to provide certain services on its behalf, such as providing support services. Customer hereby consents to Fastispeed’s use of Sub-processors as described in this Section. Except as set forth in this Section or as otherwise explicitly authorized by you, Fastispeed will not permit any other sub-processing activities.
6.2 Sub-processor Obligations. Where Fastispeed uses any authorized Sub-processor as described in Section 6.1:
(i) Fastispeed will restrict the Sub-processor’s access to Customer Data only to what is necessary to maintain the Covered Services or to provide the Covered Services to Customer and any end users in accordance with the Covered Services. Fastispeed will prohibit the Sub-processor from accessing Customer Data for any other purpose;
(ii) Fastispeed will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor is performing the same data processing services that are being provided by Fastispeed under this Addendum, Fastispeed will impose on the Sub-processor the same contractual obligations that Fastispeed has under this Addendum; and
(iii) Fastispeed will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of the Sub-processor that cause Fastispeed to breach any of Fastispeed’s obligations under this Addendum.
6.3 New Sub-processors. From time to time, we may engage new Sub-processors under and subject to the terms of this Addendum. In such case, we will provide 30 days advance notice (via our website and email) prior to any new Sub-processor obtaining any Customer Data. If you Customer does not approve of a new Sub-processor, then Customer may terminate any Covered Services without penalty by providing, within 10 days or receipt of notice from us, written notice of termination that includes an explanation of the reasons for your non-approval. If the Covered Services are part of a bundle or bundled purchase, then any termination will apply to its entirety.
7. Security Incident
7.1 Security Incident. If Fastispeed becomes aware of a Security Incident, Fastispeed will without undue delay: (a) notify Customer of the Security Incident; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
7.2 Fastispeed Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under any applicable privacy laws, Fastispeed will include in the notification such information about the Security Incident as Fastispeed is reasonably able to disclose to Customer, taking into account the nature of the Covered Services, the information available to Fastispeed, and any restrictions on disclosing the information, such as confidentiality.
7.3 Failed Security Incidents. Customer agrees that:
(i) A failed Security Incident will not be subject to the terms of this Addendum. A failed Security Incident is one that results in no unauthorized access to Customer Data or to any of Fastispeed’s Network, equipment, or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
(ii) Fastispeed’s obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Fastispeed of any fault or liability of Fastispeed with respect to the Security Incident.
7.4 Notification. Notification of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Fastispeed selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the Fastispeed management console and secure transmission at all times.
8. Customer Rights
8.1 Independent Determination. Customer is responsible for reviewing the information made available by Fastispeed relating to data security and its Security Standards and making an independent determination as to whether the Covered Services meets Customer’s requirements and legal obligations as well as Customer’s obligations under this Addendum. The information made available is intended to assist Customer in complying with Customer’s obligations under applicable privacy laws, including the GDPR, in respect of data protection impact assessments and prior consultation.
8.2 Customer Audit Rights. Customer has the right to confirm Fastispeed’s compliance with this Addendum as applicable to the Covered Services by making a specific request in writing, at reasonable intervals, to the address set forth in the Terms of Service. If Fastispeed declines to follow any instruction requested by Customer regarding a properly requested and scoped audit or inspection, Customer is entitled to terminate this Addendum and the Terms of Service.
9. Transfers of Customer Data
9.1 U.S. Based Processing. Except where specifically noted in the Terms of Service, Customer Data will be transferred outside the United Kingdom or the EEA and processed in the United States.
9.2 Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for Customer Data. The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses will not apply where the data is transferred in accordance with a recognized compliance standard for the lawful transfer of Personal Data outside the EEA, such as when necessary for the performance of Covered Services pursuant to the Terms of Service or with your consent.
9.3 Application of UK Standard Contractual Clauses. The UK Standard Contractual Clauses will apply to Customer Data transferred via Covered Services from the United Kingdom, either directly or via onward transfer, to any country not recognized by the competent United Kingdom regulatory authority or governmental body as providing an adequate level of protection for Customer Data. The UK Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the United Kingdom. Notwithstanding the foregoing, the UK Standard Contractual Clauses will not apply where the data is transferred in accordance with a recognized compliance standard for the lawful transfer of Customer Data outside the United Kingdom, such as when necessary for the performance of Covered Services pursuant to the Terms of Service or with your consent.
10. Termination of the Addendum
This Addendum will continue in force until the termination of our processing in accordance with the Terms of Service (the “Termination Date”).
11. Return or Deletion of Customer Data
As described in the Covered Services, the Customer may be provided controls that may use to retrieve or delete Customer Data. Deletion of Customer Data will take place thirty (30) days following Termination Date, subject to the terms of the particular Covered Services.
12. Limitations of Liability
The liability of each party under this Addendum will be subject to the exclusions and limitations of liability set out in the Terms of Service. Customer agrees that any regulatory penalties incurred by Fastispeed in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum and any applicable privacy laws will count towards and reduce Fastispeed’s liability under the Terms of Service as if it were liability to the Customer under the Terms of Service.
13. Entire Terms of Service; Conflict
This Addendum supersedes and replaces all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Fastispeed, whether written or verbal, regarding the subject matter of this Addendum, including any data processing addenda entered into between Fastispeed and Customer with regard to the processing of personal data and on the free movement of such data. Except as amended by this Addendum, the Terms of Service will remain in full force and effect. If there is a conflict between the Terms of Service and this Addendum, the terms of this Addendum will control.
Appendix 1
DETAILS OF THE PROCESSING
1. Nature and Purpose of Processing. Fastispeed will Process Customer Data as necessary to perform the Covered Services pursuant to the Terms of Service and as further instructed by Customer throughout its use of the Covered Services.
2. Duration of Processing. Subject to Section 10 and 11 of this Addendum, Fastispeed will Process Customer Data during the effective date of the Terms of Service. Notwithstanding the foregoing, Fastispeed may retain Customer Data, or any portion of it, if required by applicable laws or regulation, including applicable Data Protection Laws, provided that such Customer Data remains protected in accordance with the terms of this Addendum and applicable Data Protection Laws.
3. Categories of Data Subjects. Customer may upload Personal Data in the course of its use of the Covered Services, the extent to which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners and vendors
Employees, agents, advisors, freelancers of Customer (who are natural persons)
Customer’s Users authorized by Customer to use the Covered Services
4. Categories of Personal Data. Customer may upload Personal Data in the course of its use of the Covered Services, the type of and extent to which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data of Data Subjects:
Name
Address
Telephone number
Date of birth
Email address
Other data collected that could directly or indirectly identify data subjects.
5. Sensitive Data or Special Categories of Data. Customer may upload Sensitive Data in the course of its use of the Covered Services, the type of and extent to which is determined and controlled by Customer in its sole discretion. Customer is responsible for applying restrictions or safeguards that fully take into consideration the nature of the data and the risks involved prior to transmitting or processing any Sensitive Data via the Covered Services.
Appendix 2
Security Standards
I. Technical and Organizational Measures
We are committed to protect our customers’ information. Taking into account the best practices, the costs of implementation and the nature, scope, circumstances and purposes of processing as well as the different likelihood of occurrence and severity of the risk to the rights and freedoms of natural persons we take the following technical and organizational measures. When selecting the measures the confidentiality, integrity, availability and resilience of the systems are considered. A quick recovery after a physical or technical incident is guaranteed.
II. Data Privacy Program
Our Data Privacy Program is established to maintain a global data governance structure and secure information throughout its lifecycle. This program is driven by the office of the data protection officer, which oversees the implementation of privacy practices and security measures. We regularly test, assess and evaluate the effectiveness of its Data Privacy Program and Security Standards.
1. Confidentiality. “Confidentiality means that personal data is protected against unauthorized disclosure.”
We use a variety of physical and logical measures to protect the confidentiality of its customers’ personal data. Those measures include:
Physical Security
Access Control & Prevention of Unauthorized Access
Encryption
Data Minimization
Security Testing
Penetration Testing for critical company networks and platforms hosting personal data
Regular network and vulnerability scans
2. Integrity. “Integrity refers to ensuring the correctness (intactness) of data and the correct functioning of systems. When the term integrity is used in connection with the term “data”, it expresses that the data is complete and unchanged.”
Appropriate change and log management controls are in place, in addition to access controls to be able to maintain the integrity of personal data such as:
Change & Release Management
Logging & Monitoring
3. Availability. “The availability of services and IT systems, IT applications, and IT network functions or of information is guaranteed, if the users are able to use them at all times as intended.”
We implement appropriate continuity and security measures to maintain the availability of its services and the data residing within those services:
4. Data Processing Instructions. “Data Processing Instructions refers to ensuring that personal data will only be processed in accordance with the instructions of the data controller and the related company measures”
We have established internal privacy policies, agreements and conduct regular privacy trainings for employees to ensure personal data is processed in accordance with customers’ preferences and instructions.
UK Standard Contractual Clauses (Controller to Processors)
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 entity identified as “Customer” in the Addendum
(the “data exporter”)
and
Fastispeed.com, LLC
(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 Annex 1.
Clause 1
Definitions
For the purposes of the Clauses:
‘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;
‘the data exporter’ means the controller who transfers the personal data;
‘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;
‘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;
‘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;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a)that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b)that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c)that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d)that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e)that it will ensure compliance with the security measures;
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, (f)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
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 6
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:
to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
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 7
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 8
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, and when in doubt or where multiple data exporters, will be governed by the laws of England and Wales.
Clause 9
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 10
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 11
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Annex 1 to the UK Standard Contractual Clauses
Data exporter
The data exporter is the entity identified as “Customer” in the Addendum
Data importer
Fastispeed.com, LLC
Data subjects
The processing operations are described in Appendix 1 of the Addendum.
Categories of data
The processing operations are described in Appendix 1 of the Addendum.
Processing operations
The processing operations are described in Section 2.2 and Appendix 1 of the Addendum.
Annex II to the UK Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described in the Addendum, specifically in Appendix 2, which is incorporated and attached to it.
Annex III to the UK Standard Contractual Clauses
The list of sub-processors is located in Appendix 3 of the Addendum.
1 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
