WORKAMAJIG DATA PROCESSING AGREEMENT

 

This Data Processing Agreement (“DPA”) reflects the agreement between Creative Manager (“CM”) and each of its clients (“Users”) regarding the Processing of Personal Data provided to CM by Users in connection with their use of online services (the “Services”) from CM in accordance with the terms and conditions of their license agreements with CM (each, an “Agreement” and, collectively, the “Agreements”). This DPA is an amendment to the Agreement with each User and will become effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement or in an Order Form, or by an executed amendment thereto. Upon becoming effective, this DPA will form an integral part of the Agreement.

All capitalized terms used but not defined in this DPA shall have the meaning set forth in the Agreement. Except where the context otherwise requires, all references in this DPA to the Agreement are to the Agreement, as amended by this DPA.

 

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any User Affiliate which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the terms of the Agreement, but has not signed its own Order Form with CM and is not a "User", as defined under the Agreement.

“CM” means Creative Manager, Inc., a corporation organized under the laws of the State of New Jersey in the United States of America.

“Controller” means User and any other entity which determines the purposes and means of the Processing of Personal Data.

“Customer Data” means what is defined in the Agreement as “User Content”.

“Data Protection Laws” means all applicable laws and regulations relating to data protection and privacy, including, but not limited to, applicable United States federal, state and local laws and regulations, applicable laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”), and their member states, and applicable laws and regulations of Switzerland, and the United Kingdom, as these laws and regulations may be amended from time to time.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“GDPR” means the General Data Protection 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)  

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data. 

“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.

“Processor” means the entity which Processes Personal Data on behalf of the Controller.

“Security and Privacy Documentation” means the CM Information Security Policy applicable to the Services under the Agreement, as updated by CM from time to time and made reasonably available by CM.

“Sensitive Personal Data” means Personal Data that is not Work-Related Personal Data, including, but not limited to, personal financial account information, personal credit or debit card numbers, Social Security numbers, passport numbers, driver’s license numbers, home addresses, personal email addresses and similar personal identifiers, information regarding racial or ethnic origins, physical or mental health conditions, and other employment, financial and health information.

“Standard Contractual Clauses” means the contractual provisions attached hereto as Schedule 2, pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-Processor” means any Processor engaged by CM. 

“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

“Work-Related Personal Data” means only such Personal Data as is necessary to enable User to use and benefit from the Services in accordance with the terms of the Agreement.

 

2. PROCESSING OF PERSONAL DATA

2.1  CM and User acknowledge and agree that User is the Controller of Personal Data and CM is the Processor of that Personal Data, and that CM will engage Sub-Processors pursuant to the requirements set forth in Section 5 “Sub-Processors” below.

2.2   User shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws; and User’s instructions to CM for the Processing of Personal Data shall comply with Data Protection Laws. User shall have the sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which User acquired Personal Data.

2.3   CM shall treat Personal Data as Confidential Information (as defined in the Agreement) and shall only Process Personal Data on behalf of and in accordance with User’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by User and its login users and contact persons in their use of the Services in accordance with the Agreement; and (iii) Processing to comply with other documented reasonable instructions provided by User (e.g., via email) where such instructions are consistent with the terms of the Agreement. 

2.4   The subject matter of Processing of Personal Data by CM is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, and the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.

 

3. RIGHTS OF DATA SUBJECTS 

3.1   CM shall, to the extent legally permitted, promptly notify User if it receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or right not to be subject to automated individual decision-making, in respect of that person’s Personal Data (“Data Subject Request”). CM shall not respond to a Data Subject Request without User’s prior written consent, except to confirm that the request relates to User, to which procedure User hereby agrees. To the extent that User, in its use of the Services, does not have the ability to address a Data Subject Request, CM shall, upon User’s request, provide commercially reasonable assistance to facilitate the Data Subject Request to the extent CM is legally permitted to do so and provided that the Data Subject Request is exercised in accordance with Data Protection Laws. User shall be responsible for any costs arising from CM’s provision of such assistance and, upon demand, shall reimburse CM for any such costs.

 

4. CM PERSONNEL

4.1   CM shall ensure that those of its personnel who are engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities, and have executed written confidentiality agreements. CM shall ensure that these confidentiality obligations survive the termination of the personnel engagement.

4.2   CM shall take commercially reasonable steps to ensure the reliability of any CM personnel engaged in the Processing of Personal Data.

4.3   CM shall ensure that CM’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

4.4   CM has appointed a data protection officer who may be reached at privacy@workamajig.com.

 

5. SUB-PROCESSORS

5.1   User acknowledges and agrees that CM may engage third-party Sub-Processors in connection with the provision of the Services. CM has entered into a written agreement with each Sub-Processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data and Personal Data to the extent applicable to the nature of the Services provided by such Sub-Processor.

5.2   The Sub-Processors for the Services identified in Appendix 3 to the Standard Contractual Clauses are listed on Schedule 4 to this DPA; and, for purposes of this DPA and Clause 11 of the Standard Contractual Clauses, User consents to the engagement of each of these Sub-Processors. CM will provide notification of any new Sub-Processor(s) before authorizing any such new Sub-Processor(s) to Process Personal Data in connection with the provision of the applicable Services.

5.3   User may object to CM’s use of a new Sub-Processor (other than the Sub-Processors listed on Schedule 4 hereto) by notifying CM promptly in writing within ten (10) business days after receipt of CM’s notice in accordance with Section 5.2 hereof. If User objects to a new Sub-Processor, CM will use commercially reasonable efforts to make available to User a change in the provision of Services which avoids the use of the objected-to new Sub-Processor. If CM is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, User may terminate the Agreement or, as the case may be, the applicable Order Form(s), in each case with respect only to those Services which cannot be provided by CM without the use of the objected-to new Sub-Processor, by providing written notice to that effect to CM. If User does so, CM will refund to User any prepaid fees covering the remainder of the term of the Agreement or such Order Form(s) following the effective date of termination with respect to the terminated Services, without imposing any penalty or other charge on User for such termination.

5.4   CM shall be liable for the acts and omissions of its Sub-Processors to the same extent CM would be liable if performing the services of each Sub-Processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

 

6. SECURITY

6.1  Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of Processing, as well as the varying likelihood and severity for the rights and freedoms of natural persons, CM shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data and Personal Data), confidentiality and integrity of Customer Data and Personal Data, as set forth in the Security and Privacy Documentation. CM regularly monitors compliance with these measures. CM will not materially decrease the overall security of the Services during the term (including any renewal term) of the Agreement.

6.2   CM has obtained the third-party certifications and audits set forth in the Security and Privacy Documentation. Upon User’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, CM shall make available to User, so long as User is not a competitor of CM (or to User’s independent, third-party auditor that is not a competitor of CM), a copy of CM’s then most recent third-party audits or certifications, as applicable.

 

7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION.

CM maintains the security incident management policies and procedures specified in the Security and Privacy Documentation and will notify User without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by CM or its Sub-Processors of which CM becomes aware (a “Customer Data Incident”). CM shall make reasonable efforts to identify the cause of the Customer Data Incident and take such steps as CM deems necessary and commercially reasonable in order to remediate the cause of the Customer Data Incident to the extent the remediation is within CM’s reasonable control. These obligations of CM shall not apply to incidents that are caused by User or User’s login users, or incidents for which User has assumed responsibility under the Agreement.

 

8. RETURN AND DELETION OF CUSTOMER DATA.

CM shall return Customer Data and Personal Data to User and, to the extent allowed by applicable law, delete Customer Data and Personal Data in accordance with the procedures and timeframes specified in the Agreement and the Security and Privacy Documentation. For purposes hereof, “delete” means to remove such Data so that it cannot be recovered or reconstructed. 

 

9. AUTHORIZED AFFILIATES

9.1 The parties acknowledge and agree that, by executing the Agreement, the User is entering into this DPA on behalf of itself and, if and to the extent applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between CM and each such Authorized Affiliate, subject to the provisions of the Agreement, this Section 9, and Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by User.

9.2 User shall be and remain responsible for coordinating all communication with CM under this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

9.3 Where an Authorized Affiliate becomes a party to the DPA with CM, it shall, to the extent required under applicable Data Protection Laws, be entitled to exercise the rights and seek the remedies under this DPA, subject to the following: 

  1. Except where applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against CM directly by itself, the parties agree that (i) only User shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) User shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually, but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 9.B, below).

  2. The parties agree that User shall, when carrying out any on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on CM and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of different Authorized Affiliates in one single audit. 

 

 
 
10. LIMITATION OF LIABILITY.

Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and CM, whether in contract, tort or under any other theory of liability, is subject to the limitation of liability provisions set forth in Section A.12 of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, CM’s total liability for all claims from User and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by User and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to User and/or to any Authorized Affiliate that is a contractual party to any such DPA. Each reference to the DPA in this DPA means this DPA, including its Schedules and Appendices.

 

11. EUROPEAN SPECIFIC PROVISIONS

11.1 Effective from and after May 25, 2018, CM will Process Personal Data subject to protection under the GDPR in accordance with those GDPR requirements that are directly applicable to CM's provision of its Services.

11.2 Effective from and after May 25, 2018, upon User’s request, CM shall provide User with reasonable cooperation and assistance needed to fulfill User’s obligation under the GDPR to carry out a data protection impact assessment related to User’s use of the Services, to the extent User does not otherwise have access to the relevant information, and to the extent such information is available to CM. CM shall provide reasonable assistance to User in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 11.2, to the extent required under the GDPR.

11.3 CM, User and each Authorized Affiliate hereby (a) adopt and agree to be bound by the Standard Contractual Clauses set forth in Schedule 2 to this DPA in respect of any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, and/or the United Kingdom, to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and, absent the Standard Contractual Clauses and compliance therewith, such transfers would be in breach of such applicable Data Protection Laws, and (b) agree that the Standard Contractual Clauses shall apply to the Services in Appendix 3 thereto (the “SCC Services”) and shall be subject to the additional terms set forth in Schedule 3 to this DPA. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses will, to the extent applicable in accordance with this Section 11.3, control.

 

12. LIST OF SCHEDULES.

The following Schedules are incorporated into and made an integral part of this DPA: 

       Schedule 1: Details of the Processing

       Schedule 2: Standard Contractual Clauses

       Schedule 3: Additional SCC Services Terms

       Schedule 4: List of Sub-Processors

 

 

SCHEDULE 1 – DETAILS OF PROCESSING

 

A. Nature and Purpose of Processing

Personal Data will be Processed as necessary to perform the Services pursuant to the Agreement, as further specified in the documentation therefor and in the Security and Privacy Documentation, and as further instructed by User in its use of the Services.

B. Duration of Processing

Subject to Section 8 of the DPA, Personal Data will be Processed for the duration of the Agreement, unless otherwise agreed by the parties in writing.

C. Categories of Data Subjects

The categories of data subjects are the following:

  • Prospects, customers, business partners and vendors of User (who are natural persons)
  • Employees or contact persons of User’s prospects, customers, business partners and vendors 
  • Employees, agents, and advisors of User (who are natural persons)
  • Login users of User or any Authorized Affiliate authorized by User and permitted by the terms of the Agreement to use the Services

 D. Type of Personal Data

The types of Personal Data that will be available to and Processed by CM in accordance with this DPA and the Agreement are the following:

  • First and last names
  • Position/Title
  • Employer
  • Contact information (company, email address, telephone number, business address)
  • WMJ System passwords

NOTE: For the avoidance of doubt, the extent of the Personal Data that will be available to and Processed by CM will be determined and controlled solely by User, subject to the restrictions in the Agreement, limiting such Personal Data to Work-Related Personal Data and excluding any Sensitive Personal Data.

 

 

SCHEDULE 2 - 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.

The User, as defined in the Agreement (the “data exporter”)

And

Creative Manager, Inc., 721 Auth Avenue, Oakhurst, New Jersey, 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:

 

Clause 1

Definitions

 

  • (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 Article25(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.

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:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any 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; 
  8. 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; 
  9. 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 
  10. 
that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5

Obligations of the data importer

 

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; 
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred; 
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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; 
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

 

Clause 6

Liability

 

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his 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 or 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 7

Mediation and jurisdiction

 

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

Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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 9

Governing Law

 

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

 

Clause 10

Variation of the contract

 

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

 

Clause 11

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 fulfill 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 12

Obligation after the termination of personal data processing services

 

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the 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. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

 

Data exporter

The data exporter is the User, as defined in the license agreement between Creative Manager, Inc. and the User (the “Agreement”).

Data importer

The data importer is Creative Manager, Inc., a provider of a web-based project management system.

Data subjects

The personal data transferred concern the categories of data subjects identified in Section C of Schedule 1 of the Data Processing Agreement to which the Clauses are attached.

Categories of data

The personal data transferred concern the categories of data identified in Section D of Schedule 1 to the Data Processing Agreement to which the Clauses are attached. 

Special categories of data (if appropriate)

The parties do not anticipate the transfer of any special categories of data.

Processing operations

The objective of Processing of Personal Data by data importer is the performance of the SCC Services pursuant to the Agreement. The processing activities to which the personal data transferred will be subject are those activities set forth in Appendix 3 to the Clauses.

 

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

 

This Appendix forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

The Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the SCC Services, as described in the Security and Privacy Documentation (as defined in the Data Processing Agreement between the data exporter and the data importer) applicable to the specific SCC Services licensed by data exporter and made reasonably available by data importer. The data importer will not materially decrease the overall security of the SCC Services during the term (including any renewal term) of the Agreement.

 

APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES

SCC Services 

  1. Storage of Work-Related Personal Data on the servers of the data importer (CM) for access by the data exporter (User) and its authorized login users in their use of the Services.
  1. Storage of Work-Related Personal data on the servers of the data importer (CM) for access by CM for the following purposes:

            (a) Providing trouble-shooting and support services to the User;

            (b) Providing assistance to login users in their use of the Services in connection with User’s various projects;

            (c) Providing User with Service updates; and

            (d) Preparing and providing User with anonymized quarterly surveys, showing User’s use of the Services in comparison with the use of the Services by other CM users.

 

SCHEDULE 3 – ADDITIONAL SCC SERVICES TERMS

 

1.1 Instructions. This DPA and the Agreement are User’s complete and final documented instructions to CM at the time of signature of the Agreement for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by User to process Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by User in its use of the SCC Services; and (c) Processing to comply with other reasonable documented instructions provided by User (e.g., via email) where such instructions are consistent with the terms of the Agreement.

1.2 Copies of Sub-Processor Agreements. The parties agree that the copies of the Sub-Processor agreements that must be provided by CM to User pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, and all clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by CM beforehand; and that such copies will be provided by CM, in a manner to be determined in its discretion, only upon request by User. 

1.3 Audits and Certifications. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: 
Upon User’s request, and subject to the confidentiality obligations set forth in the Agreement, CM shall make available to User, so long as User is not a competitor of CM (or to User’s independent, third-party auditor that is not a competitor of CM), information regarding CM’s compliance with the obligations set forth in the DPA in the form of the third-party certifications and audits set forth in the Security and Privacy Documentation, to the extent that CM makes them generally available to its customers. User may contact CM to request an on-site audit of the procedures relevant to the protection of Personal Data; provided, that no more than one on-site audit may be conducted by or on behalf of User during any calendar year, unless (a) User reasonably considers such audits necessary because of genuine concerns regarding CM’s compliance with its obligations under the DPA, or (b) User is required to conduct such additional audit(s) by applicable Data Protection Laws, or by any Supervisory Authority or similar regulatory authority responsible for the enforcement of Data Protection Laws in any applicable country or territory; and provided further, that in each case User shall have identified its concerns or the applicable requirement or request in its notice(s) to CM requesting such additional audit(s). User shall reimburse CM for any time expended for any such on-site audit at CM’s then-current services rates, which shall be made available to User upon request. Before the commencement of any such on-site audit, User and CM shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which User shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by CM. User shall promptly notify CM with information regarding any non-compliance discovered during the course of an audit.

1.4 Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by CM to User only upon User’s request.

 

SCHEDULE 4 – LIST OF CM SUB-PROCESSORS

  • Amazon AWS
  • BackBlaze
  • Cello LLC
  • Google
  • Hubspot, Inc.
  • NTT (Verio)
  • Rise at Seven, LLC
  • Streamline Technologies, Inc.
  • WalkMe, Inc.
  • WideWorld Receiving IDF, LLC
  • World Wide Development Company