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Last update: January 3, 2022
WHO WE ARE
MarketStar provides advanced sales and marketing services for its clients to drive market revenue, grow accounts, and expand their customer base. MarketStar services are categorized as sales as a service, and involve provision of talented sales teams and management, marketing programs, data analysis, sourcing and intelligence services, advisory services and operations support.
WHAT IS PERSONAL DATA
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Under specific laws, Personal Data may include any information relating to a household.
PERSONAL DATA WE PROCESS
We operate as both a data controller, where we determine the means of data processing for our own business needs, and a data processor, where we process data on behalf of our business clients. Key information about these processing roles is detailed below.
The categories of data subjects for whom we process Personal Data are:
As Data Controller: (1) Client Representatives; (2) Business Representatives; (3) Other Users; and (4) Web Users.
As Data Processor: (1) Client Customers; (2) Potential Client Customers; (3) Business Representatives; and (4) Other Users.
The purposes for processing Personal Data are:
As Data Controller: (1) Administer contracts; (2) Operate our business; (3) Meet our legal obligations; (4) Register with our proprietary software platforms; and (5) Seek new market opportunities.
As Data Processor: (1) Fulfil our contractual obligations; (2) Qualify client leads; (3) Enhance client data; (4) Provide sales and marketing services; (5) Perform data analytics and reporting; and (6) Provide advisory services.
The possible consequences of failing to provide Personal Data is our inability to respond to inquiries or interact for business purposes.
The categories of Personal Data we process are:
As Data Controller: (1) Business contact information; (2) Business administration information; (3) Finance information; and (4) Other data related to the client relationship.
As Data Processor: (1) Business contact information; (2) Business profile information; and (3) Other data related to client programs.
The examples of Personal Data processed include: name, phone number, email address, business name, job title, job role, contracts, statements of work, work product, policies, surveys, reports, sales and marketing information, and other administrational documents and compliance records associated with an individual or their specific job role.
The sources of Personal Data collected include: business interaction with the data subject, online forms, chat-line requests, purchased lists, social media, marketing surveys, phone calls, and open source means.
The legal basis for processing Pesonal Data is: (1) necessity to perform contract; (2) legitimate interest as a provider of advanced sales and marketing services; or (3) regulatory requirements.
Personal Data we do NOT actively collect or process: We do not actively collect or otherwise process the personal data of minors, data related to criminal convictions and offenses, or special categories of data (i.e. revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, or genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. Please note that employees are provided a separate privacy notice.
Data processed from third-party service providers: We may purchase and license customer lists, contact lists and other business intelligence so that we may provide our sourcing and intelligence services to our clients. These processing activities are key to our business value. We may source this information on behalf of our clients in order to perform our contractual obligations under our service agreements. This service is an integrated part of our overall advanced sales and marketing services. Data sourced from third-party service providers is shared with our clients or used by us on behalf of our clients in marketing campaigns and other sales initiatives. This may be considered as selling personal data as we receive monetary or other valuable consideration for our services that include this processing. We do not separately sell personal data. Please note that we do not process, sell or share the data of minors.
Technical data: We process technical information and navigational information when you visit our website, which is found at https://www.marketstar.com/. Technical information includes IP address, geographical location, device ID and related information and browser type. Navigational information includes pages viewed, selection made and length of visit. Our primary goal in processing this information from you is to provide you access to features on the site and help us improve our product and services and develop and market new products and services.
We may also process payment information when you pay for certain MarketStar services.
PURPOSES FOR PROCESSING PERSONAL DATA
We process personal data to fulfill our contractual obligations in our service contracts with clients and enhance client business opportunities. In addition, we process personal data for sales leads, information services, payment, employee training, marketing, web analysis, security monitoring, and recruitment and employment. Our purpose in processing this personal data is to develop new client relationships, increase our client service and for administrative and other business purposes.
We may use your data to comply with applicable laws, exercise legal rights, and meet tax and other regulatory requirements. We may also use your personal data for internal purposes, including auditing, data analysis, system troubleshooting, and research. In these cases, we base our processing on legitimate interests in performing the activities of the organization.
SHARING OF PERSONAL DATA
We do not sell your personal data!
We share your personal data with clients, third-party service providers, regulatory bodies, public authorities and law enforcement in the following circumstances:
- Clients. We may provide personal data we obtain from our third-party service providers to our clients in order to fulfill our contractual obligations as a sales and marketing service provider. For example, we may provide our clients with contact information of an organizational representative so that the representative can be presented with an opportunity to purchase a software license that would be of value to the organization. We may also provide our clients with customers lists we have purchased or licensed from our third-party service providers.
- Affiliates. MarketStar operates as part of a group of entities and may share your personal data with any one of MarketStar’s affiliates, including AEBE Limited, a company limited by shares with company number 467373, trading as MarketStar, located in Dublin, Ireland.
- Partners. MarketStar engages partnered subcontractors to perform sales and marketing services for certain specialty work.
- Regulatory Bodies, Public Authorities and Law Enforcement. We may access and disclose your personal data to regulatory bodies if we have a good-faith belief that doing so is required under regulation. This may include submitting personal data required by tax authorities. We may disclose your personal data in response to lawful requests by public authorities or law enforcement, including to meet national security or law enforcement requirements.
- Other Disclosures. We may also disclose your personal data to exercise or defend legal rights; to take precautions against liability; to protect the rights, property, or safety of the resource, of any individual, or of the general public; to maintain and protect the security and integrity of our services or infrastructure; to protect ourselves and our services from fraudulent, abusive, or unlawful uses; or to investigate and defend ourselves against third-party claims or allegations. Disclosures may be made to courts of law, attorneys and law enforcement or other relevant third parties in order to meet these purposes.
In cases of onward transfer of personal information to third parties of data of EU individuals received pursuant to the EU-U.S. Privacy Shield, MarketStar remains liable.
STORAGE OF PERSONAL DATA
Personal Data stored on behalf of our clients and for our own purposes is processed and stored at various locations including on servers located in the United States of America and the EU. In the event that Personal Data is transferred outside of the United States of America, we will ensure that adequate protections are implemented to comply with the GDPR, such as Standard Contractual Clauses. We also implement a Data Sharing Agreement that incorporates the Standard Contractual Clauses for personal data transferred and stored between our affiliates.
MarketStar uses technical and organizational measures to protect the personal data that we store, transmit, or otherwise process, against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access. We currently maintain certifications for the SOC 2 Type II security standard and internationally recognized ISO 27001 security standard. We regularly consider appropriate new security technology and methods as we maintain and develop our software and systems.
RETENTION OF PERSONAL DATA
MarketStar retains the personal data of its clients and client’s customers for a period of time as instructed by the clients for whom MarketStar processes data. Where MarketStar collects personal data for its own purposes, it retains the data for a reasonable period of time to fulfill the processing purposes mentioned above. Personal data is then archived for time periods required or necessitated by law or legal considerations. When archival is no longer required, personal data is deleted from our records. If you wish to request a deletion of your data, please contact directly the client who provided the source of data. If you want more information about how to contact a client, make an inquiry to the address provided at the end of this notice.
We retain personal data that we are required to retain in order to meet our regulatory obligations including tax records and transaction history. We regularly review our retention policy to ensure compliance with our obligations under data protection laws and other regulatory requirements. We regularly audit our databases and archived information to ensure that personal data is only stored and archived in alignment with our retention policy.
PERSONAL DATA RIGHTS
Online Form: https://www.marketstar.com/contact/privacyrequest
Toll-free Number (USA): +1.(800).877.8259
Attn: Privacy Team
MarketStar QOZ Business, LLC
2475 Washington Boulevard,
Ogden, UT 84401, United States of America
Our EU representative:
Attn: EU Privacy Officer
AEBE Limited T/a MarketStar
Block G, 2nd Floor
Central Park, Leopardstown
Dublin 18, D18 NH10, Ireland
For marketing emails, an unsubscribe option is provided at the end of each email communication. For text messages, a STOP messaging option is provided. You may also request that we limit the use and disclosure of your personal data using the contact methods provided above.
Depending on where you reside, there may be certain rights that you can exercise regarding your personal data. We have listed key privacy rights below:
Residents of the European Economic Area (“EEA”)
The following rights are available to residents of the EEA:
- Access: The right to obtain confirmation as to whether or not your personal data is being processed, and to obtain access to specific information about the processing.
- Rectification: The right to obtain rectification of inaccurate personal data and the right to have incomplete personal data completed.
- Erasure: The right to obtain erasure of personal data, subject to certain GDPR requirements.
- Restriction of Processing: The right to obtain restriction of processing of personal data where (a) accuracy is contested and being verified, (b) processing is unlawful, (c) data is not needed but for processing but is required for legal claims, or (d) following an objection to processing where legitimate grounds for processing are being verified.
- Data Portability: The right to receive persona data and transmit to another controller
- Object: The right to object to direct marketing; the right to object on grounds of particular situation
- Automated individual decision-making, including profiling: The right not to be subject to a decision based solely on automated decision-making, including profiling; a right to appeal
Individuals also have the right to lodge a complaint about the processing of their personal data with their local data protection authority or with the Irish Data Protection Commission at:
Online Form: https://forms.dataprotection.ie/contact
21 Fitzwilliam Square South
Residents of California
The following rights are available to California residents:
- Right to know what personal information is being collected
- Right of access
- Right to know what personal information is sold or shared and to whom
- Right to opt out of sale or sharing of personal information
- Right to delete personal information
- Right to correct inaccurate personal information
- Right to limit use and disclosure of sensitive personal information
- Right of no retaliation following opt out or exercise of other rights
PRIVACY SHIELD FRAMEWORK
Under the Privacy Shield framework, there is a right to access personal data and to correct, amend, restrict or delete that information where it is inaccurate, or has been processed in violation of the Principles, except where the burden or expense of providing access would be disproportionate to the risks to the individual’s privacy in the case in question, or where the rights of persons other than the individual would be violated.
Organizations participating in Privacy Shield must respond within 45 days of receiving a complaint. If you have not received a timely or satisfactory response to your question or complaint, please contact one of the independent recourse mechanisms listed below:
JAMS Privacy Shield Program
Please note that these independent dispute resolution bodies are designated to address complaints and provide appropriate recourse free of charge to the individual.
If a Consumer’s complaint cannot be resolved through MarketStar’s internal processes, MarketStar will cooperate with JAMS pursuant to the JAMS International Mediation Rules, available on the JAMS website at www.jamsadr.com/international-mediation-rules. JAMS mediation may be commenced as provided for in the relevant JAMS rules. The mediator may propose any appropriate remedy, such as deletion of the relevant personal data, publicity for findings of noncompliance, payment of compensation for losses incurred as a result of noncompliance, or cessation of processing of the personal data of the Consumer who brought the complaint. The mediator or the Consumer also may refer the matter to the U.S. Federal Trade Commission, which has Privacy Shield investigatory and enforcement powers over MarketStar. Under certain circumstances, Consumers also may be able to invoke binding arbitration to address complaints about MarketStar’s compliance with the Privacy Shield Principles.
The effective date MarketStar last updated its Cookies Policy is November 21, 2021.
WHAT ARE COOKIES AND WHY DO WE USE THEM
For more information about managing cookies and how to stop cookies being installed visit http://www.allaboutcookies.org/manage-cookies/.
THIRD PARTY PLATFORMS
TYPES OF COOKIES
Necessary Cookies: These cookies are strictly necessary for a website or technology platform to function and are not switched off even when a user selects “Decline” in a cookie banner. They are usually only set in response to actions made by the user such as recording your cookie consent, logging in, or filling in forms, and are therefore essential to the services provided.
Analytics Cookies: These cookies collect information about website use in an anonymous way so aggregate analytics can be performed and measured to understand site usage and improve site performance. Examples includes counting site visits and clicks. MarketStar uses Google Analytics to track anonymized usage statistics for the site. This data is used to analyze how frequently people visit the site, how the website is found, and which pages are most frequently viewed. These cookies do not collect information that identifies a website user. This information is combined with data from thousands of other users to create an overall view of website data use and is never identified individually or personally. These cookies are only used to identify ways to improve the website.
Social Media Cookies: These cookies integrate with social media links provided on the site and activate in response to user choice.
Advertising and Targeting Cookies: These cookies are based upon uniquely identifying the browser and internet device rather than relying upon the directly personal information. Cookies are placed by third-party advertising platforms or networks to collect information about website visits and actions for delivery of targeted ads and to track ad performance. The collection of this information is often through cross-context behavioral tracking. These cookies can be set by the site owner or advertising partner to build a profile of interests and show relevant adverts on other sites. Please note MarketStar does not use advertising and targeting cookies.
EFFECTIVE DATE AND AMENDMENTS
We may modify this Cookies Policy from time to time, with the current version indicated by the effective date at the top of this document.
You can email your inquiries to email@example.com. You may also contact us via phone or mail.
Toll-free Number (USA): +1.(800).877.8259
MarketStar Privacy Team
2475 Washington Boulevard,
Ogden, UT 84401,
United States of America
Our EU representative:
MarketStar Privacy Team
21 Fitzwilliam Square South
TERMS AND CONDITIONS OF USE
Last update: January 3, 2022
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THIS WEB SITE AND ANY PAGES THEREOF, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THE TERMS AND CONDITIONS MAY BE CHANGED AT ANY TIME WITHOUT NOTICE TO YOU.
FURTHERMORE, BY USING THIS WEB SITE, YOU REPRESENT (I) YOU HAVE THE CAPACITY TO BE BOUND BY THESE TERMS AND CONDITIONS AND (II) IF YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY. IF YOU DO NOT AGREE, YOU SHOULD NOT USE OR ACCESS THIS WEB SITE OR ANY PORTION THEREOF.
Restrictions On Use
This Web Site and its entire contents including, but not limited to, the text, information, material, software, layout, graphics, logos, marketing material and any white papers (collectively, the "Materials") are owned by MARKETSTAR ("MARKETSTAR"). The Materials are protected by copyright, trademark and other intellectual property laws and treaties. The Materials may not be copied, reproduced, displayed, distributed, published, licensed, modified, uploaded, downloaded, posted, reused, sold, transmitted, used to create a derivative work, or otherwise used for public or commercial purposes, without the prior written consent of MARKETSTAR. You may download (1) one copy of the Materials on a single computer for your personal, non-commercial, internal use. You may not (i) modify the Materials or use them for any commercial purpose, or any other public display, performance, sale, or rental, (ii) decompile, reverse engineer, or disassemble software materials, (iii) delete or change any copyright, trademark, or other proprietary notices from the Materials, or (iv) transfer the Materials to another person. Modification or use of the materials for any other purposes violates MARKETSTAR's intellectual property rights. The material in this Web Site is provided for lawful purposes only. Possible evidence of use of this Web Site for illegal purposes will be provided to law enforcement authorities. Prior written consent must be obtained for any commercial use of data provided on this Web Site. Please forward any requests in writing to MARKETSTAR QOZ Business LLC, 2475 Washington Blvd., Ogden, Utah 84401. MARKETSTAR reserves the right to revoke such authorization at any time, and any such use shall be discontinued immediately upon notice from MARKETSTAR.
If you download software from the Web Site, the software and its content is licensed to you by MARKETSTAR for your personal use only. Neither title nor intellectual property rights are transferred to you, but remain with MARKETSTAR, who owns full and complete title. You are not authorized to distribute, sell, modify, decompile, reverse engineer, disassemble, or otherwise convert the software in any way, or use it for any commercial purposes. You may not make copies. MARKETSTAR does not accept responsibility for any technical difficulty users may have as a result of accessing this Web Site. MARKETSTAR does not accept responsibility for the function or malfunction of any software downloaded from this Web Site.
Restriction On Liability
MARKETSTAR will not be liable for any damages or injury caused by, including but not limited to, any failure of performance, error, omission, interruption, defect, delay in operation of transmission, computer virus, or line failure. MARKETSTAR will not be liable for any damages or injury, including but not limited to, special or consequential damages that result from the use of, or the inability to use, the materials in this Web Site or a web site which is linked to this Web Site, even if there is negligence or MARKETSTAR or an authorized MARKETSTAR representative has been advised of the possibility of such damages, or both. The above limitation or exclusion may not apply to you to the extent that applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages. MARKETSTAR maintains this Web Site to provide you with information about MARKETSTAR, its products and services, and to provide an avenue of communication between you and MARKETSTAR. This Web Site provides information. While MARKETSTAR believes such information to be reliable, we make no claims or representations about the accuracy, reliability, timeliness, usefulness or completeness of such information.
The material in this Web Site could include technical inaccuracies or typographical errors. By using this Web Site, you assume all responsibility and risk for the use of this Web Site and the Internet generally. THE MATERIALS IN THIS WEB SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. MARKETSTAR DISCLAIMS ALL WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MARKETSTAR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIAL WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MARKETSTAR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE MATERIAL IN THIS WEB SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABLITY, OR OTHERWISE. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
All remarks, suggestions, ideas, graphics, or other information communicated to MARKETSTAR through this Web Site (together, the "Submission") will forever be the property of MARKETSTAR. MARKETSTAR will not compensate you for any use associated with your submission. MARKETSTAR will not be required to treat any Submission as confidential, and will not be liable for any ideas for its business (including without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future MARKETSTAR operations. Without limitation, MARKETSTAR will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. Except as noted below in this paragraph, MARKETSTAR will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Submission. Personally identifiable information that may be received at this Web Site is provided voluntarily by a visitor to this Web Site. This information is for internal purposes only and is not sold or otherwise transferred to third parties or to entities who are not involved in the operation of this Web Site. You acknowledge that you are responsible for whatever material you submit, and you, not MARKETSTAR, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
This Web Site may be linked to other web sites which are not maintained by MARKETSTAR. MARKETSTAR has not reviewed all of the web sites linked to this Web Site. MARKETSTAR is not responsible for the content of those web sites. MARKETSTAR makes no representations whatsoever about any other web sites which you may access through this one. Your linking to any other web site is at your own risk. MARKETSTAR disclaims any endorsement, sponsorship or affiliation between MARKETSTAR and other web sites unless that web site operator has our consent to place the link.
MARKETSTAR or you may terminate this agreement at any time. You may terminate this agreement by destroying: (a) all materials obtained from the Web Site, and (b) all related documentation and all copies, printouts, and installations. MARKETSTAR may terminate this agreement immediately without notice if, in its sole judgment, you breach any term or condition of this agreement. Upon termination, you must destroy all materials.
These Terms and Conditions will be governed and will be interpreted pursuant to the laws of the State of Utah, United States of America, notwithstanding any principles of conflicts of law. If any part of these Terms and Conditions is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. MARKETSTAR may change, update, discontinue, or restrict or prevent access to this Web Site or the Materials at any time without notice. MARKETSTAR may discontinue or make changes in the products or services described on the Web Site at any time. MARKETSTAR reserves the right to terminate any and all Web Site offerings without prior notice. All users may not be eligible for all the products or services offered by MARKETSTAR, and the right to determine the eligibility of users for products and services remains with MARKETSTAR. In offering information, products or services via this Web Site, MARKETSTAR is making no solicitation to any person to use such information, products or services in jurisdictions where their provision is prohibited by law.
The MARKETSTAR marks are federally protected marks of MARKETSTAR. All other trademarks displayed on this Web Site or through links to other web sites are the property of the respective trademark owners. All rights not expressly granted herein are reserved.
Copyright © 2020 MarketStar QOZ Business LLC, 2475 Washington Boulevard, Ogden, Utah 84401. All rights reserved.
Should you have any questions regarding our Web Site, please e-mail us at firstname.lastname@example.org.
MARKETSTAR UK UNITED KINGDOM: STANDARD DATA PROTECTION CLAUSES FOR TRANSFERS
Last update: December, 2021
Standard Contractual Clauses (processors) (the “UK Standard Contractual Clauses”)
The data exporter and 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.
The data exporter has entered into a Master Services Agreement and Data Processing Addendum (“Agreement”) with the data importer. Pursuant to the terms of the Agreement it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. The data exporter agrees to the provision of such services subject to the data importer’s compliance with the terms of these Clauses. The Effective Date of the UK Standard Contractual Clauses is the date of last signature executing the Agreement.
Clause 1: Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and Commissioner’ shall have the same meaning as in the UK GDPR;
(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 covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;
(d) 'the sub-processor' means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the UK, namely the UK GDPR and the Data Protection Act 2018 (“DPA 2018”);
(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- 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 Commissioner) and does not violate the applicable data protection law;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;
(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 Commissioner 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;
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 Commissioner 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 Commissioner;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7: Mediation and jurisdiction
- 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 Commissioner;
(b) to refer the dispute to the UK courts.
- 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
- The data exporter agrees to deposit a copy of this contract with the Commissioner if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the Commissioner has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9: Governing Law
The Clauses shall be governed by the law of the country of the United Kingdom 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 (i) making changes permitted by Paragraph 7(3) & (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the UK where the data exporter is established.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the Commissioner.
Clause 12: Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the sub-processor warrant that upon request of the data exporter and/or of the Commissioner, 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
The information required for the purposes of Appendix 1 is referenced in Exhibit E to the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
The information required for the purposes of Appendix 2 is referenced in Exhibit E to the Agreement.