PERSONAL DATA PROCESSING AGREEMENT WITH USERS OF WWW.B-YY.COM
This Data Processing Agreement only applies in respect of your controlled data (personal data published on your website maintained by our platform,that is processed by us on your behalf and instructions).
The personal data we may process relates to the following categories of subjects:
-You or customers or visitors of your site created via our services;
The types of personal data we may process relates to the following categories:
-Contact information (inc. email);
-Online identifications (inc. IP address);
-Pictures and photos;
-Analytics and usage data;
-Other types of data that you may consider appropriate or necessary for the operation/usage of your website;
You are the controller and we are the processor of your controlled personal data.
Data Processing Terms:
1.2. Take the necessary and appropriate technical, organizational and security measures to secure user customer data; The measures are described in Annex A ("Security Measures"). You, as our customer acknowledge that the Security Measures are subject to technical progress and development and that we may update or modify the Security Measures from time to time. in order to enhance the security of the Personal Data.
1.3. Ensure that our personnel who access the personal data are subject to confidentiality obligations that restrict their ability to disclose the customer personal data;
2.1.Process personal data in accordance with any and all applicable data protection laws and regulations, including without limitation the GDPR;
2.2.Have sole responsibility for the accuracy, quality, and legality of user customer data and the means by which it was obtained;
2.3.Ensure the appropriate level of security when using our services, taking into consideration the risk in respect of the user customer data;
2.4. Warrant that the data subjects to which the personal data pertains have been provided by you with sufficient information on the processing of their personal data.
3.1.You accept and agree that Be Wise and its affiliates are processors when we access personal data pertaining to you or your data subjects in the course of provision of our services.
3.2.You grant us a general authorization to engage sub-processors without obtaining any further written, specific authorization from you. We sign a written agreement with each sub-processor that imposes obligations on that sub-processor that are no less stringent than those required of Be Wise under the GDPR.
3.3.You authorize us to transfer your controlled data away from the country in which such data was originally collected. In particular, you authorize us to transfer your controlled data to the United States of America, but this is not an exhaustive list. We will transfer data outside the EEA using the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks or another lawful data transfer mechanism that is recognized under the GDPR as providing an adequate level of protection for such data transfers.
If we become aware of a data protection breach we will provide you notice without undue delay after becoming aware of and confirming the occurrence of a breach. We willassist you in complying with your notification obligations under Articles 33 and 34 of the GDPR, provide you with such information about the breach as we are reasonably able to disclose to you, taking into account the nature of our services, the information available to us and any restrictions on disclosing the information such as for confidentiality. Our obligation to report or respond to a breach is not and will not be construed as an acknowledgement by us of any fault or our liability with respect to the breach.
Upon such inquiry, we will, to the extent that you cannot reasonably do so through the services, provide reasonable assistance to you in respect of your fulfilment of your obligation as Data Controller to respond to requests by data subjects although this is ultimately your obligation and if we receive such request from your end-user we will advise him/her to submit this request directly to you. You will be responsible for our reasonable costs arising from our provision of such assistance.
After you stop the use of our services, at your choice, we will delete or return all personal data to you, and we will delete the existing copies unless US, European Union, European Member State law, or other applicable law requires the storage of the personal data.
We will also assist you in the performing of data protection impact assessment (as defined by the GDPR) if such is required under the applicable law, and in the conducting of prior consultations with the applicable Super Supervisory Authority or other Supervisory Authority when assessing the impact of the processing on the protection of Personal Data;
We will provide you an access to all information necessary to prove the fulfilment of your obligations for ensuring of the security of the processing of Personal Data, submitting of notifications to the Supervisory Authority in the event of a data breach, fulfilment of the rights of the Data Subjects. In addition we will allow and contribute to the performance of audits, including inspections by you or another auditor authorized by you. However, you should send us 45 days prior notice.
Limitations of liability:
9.1. Any regulatory penalties incurred by us in relation to the customer data that arise as a result of, or in connection with, your failure to comply with your obligations under this Agreement and any applicable privacy laws will count towards and reduce Be Wise maximum aggregate liability to you under the Agreement in the same amount as the fine and/or liability incurred by us as a result.
For customers located within the European Union, Appendix B ("Standard Contractual Clauses") is an integral part of this Agreement.
11.1.Any questions regarding this Agreement or specific request by your or inquiry for audit shall be addressed at
Annex A ("Security Measures")
Available upon request
Annex B ("Standard Contractual Clauses")
Standard Contractual Clauses (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.
Name of the data exporting organisation: The Customer defined as per his registration for the use of our services.
Name of the data importing organisation: Be Wise as defined above in the Data Processing Agreement.
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.
The data exporter has entered into a data processing agreement ("DPA") with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC, the GDPR and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer's execution of, and compliance with, the terms of these Clauses.
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
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.
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;
(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 subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h)that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i)that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j)to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
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.
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.
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).
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.
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.
Obligation after the termination of personal data processing services
1.The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2.The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is: customer of the data importer.
The data importer is: as defined in the DPA.
The personal data transferred concern the following categories of data subjects:
As defined in the DPA.
Categories of data
The personal data transferred concern the following categories of data:
As defined in the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
As defined in the DPA.
The personal data transferred will be subject to the following basic processing activities: As defined in the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):