Data Processing Addendum
This DATA PROCESSING ADDENDUM (the “Addendum”) forms a part of and is incorporated into the Terms of Service or any other applicable written or electronic agreement between Customer (you) and Lightspeed CLEC, Inc., (“Lightspeed”), effective as of the date of your acceptance of the such agreement (the “Agreement”). This Addendum reflects the parties’ agreement concerning the processing of personal data under the Agreement. Both Customer and Lightspeed are referred to herein individually as a “Party” and collectively as the “Parties.”
The Parties agree that to this Addendum applies, to the extent required under applicable Data Protection Laws, to govern the processing activities between Customer and Lightspeed in connection with the Lightspeed services (the "Services"). In the course of providing the Services to Customer pursuant to the Agreement, Lightspeed may process Personal Data (defined below) on behalf of Customer and the Parties agree to comply with the following terms and conditions with respect to Personal Data.
Where Data Protection Laws require this Addendum to be executed, Customer shall provide a signed addendum by a duly authorized representative to Lightspeed for countersignature.
1. Definitions. The following list of terms and definitions are applicable to this Addendum.
- “Applicable Laws” shall mean (a) laws of the European Union or a Member State that pertain to Customer’s Personal Data and/or Customer; and (b) Data Protection Laws that are applicable to Customer or Customer’s Personal Data including without limitation the California Consumer Privacy Act of 2018.
- “Authorized Persons” shall mean any person who processes Personal Data on Lightspeed’s behalf, including Lightspeed’s employees, officers, partners, principles, contractors and Subprocessors.
- "CCPA" means the California Consumer Privacy Act of 2018, as it may be amended from time to time.
- “Data Protection Laws” shall mean the EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country.
- “EEA” shall mean the European Economic Area.
- “EU Data Protection Laws” shall mean the EU General Data Protection Regulation 2016/679 of the European Parliament and Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and all applicable member state implementations thereof.
- “GDPR” shall mean the EU General Data Protection Regulation 2016/679 of the European Parliament and of Council of April 27, 2016.
- The terms "Personal Information," “Service Provider,” and "Third Party" shall have the same meaning as set forth in the CCPA.
- “Standard Contractual Clauses” shall mean the standard contractual clauses, approved by the European Commission.
- The terms “controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “processing”, “processor”, and “Supervisory Authority” shall have the same meaning as set forth in the GDPR.
- Capitalized terms not otherwise defined in this Addendum shall have the meaning given to them in the Agreement.
2. Representations and Warranties. Customer warrants and represents that (i) Customer has provided and will continue to provide the Personal Data to Lightspeed in accordance with the Data Protection Laws, (ii) Customer's execution of this Addendum has been authorized by proper corporate or company action and that it has caused a properly authorized officer or representative to execute and deliver this Addendum on its behalf; (iii) Customer has and will maintain all necessary rights, disclosures, consents and legal basis for the processing of Personal Data that Customer provides to Lightspeed for processing in accordance with the terms of the Agreement and this Addendum; (iv) Customer has provided all disclosures to any data subjects and/or consumers as required by Applicable Laws; and (v) Customer is and will, at all relevant times, remain duly and effectively authorized to give the instructions set forth in Section 3(c)(i) of this Addendum.
3. Processing of Customer’s Personal Data
- The Parties hereby acknowledge and agree that Customer is acting as the controller and Lightspeed as a processor as those terms are defined under the GDPR.
- Processor shall:
-Comply with all applicable Data Protection Laws in the processing of Customer’s Personal Data; and
-Not engage in any processing of Customer’s Personal Data other than in accordance with Customer’s documented instructions as set forth in Exhibit A to this Addendum unless processing is required by Applicable Laws to which Lightspeed, as a processor, is subject and in that case, Lightspeed shall, to the extent permitted by Applicable Laws, inform Customer of that legal requirement before processing such Personal Data.
- Customer shall:
-Subject to Section 5(c) of this Addendum, instruct Processor on the Processing of Customer's Personal Data and by virtue of such instruction, thereby authorizes Processor and each Subprocessor utilized by Processor as of the effective date of this Addendum and thereafter, in accordance with Section 5 of this Addendum, to Process Customer’s Personal Data for the provision of the Services and consistent with this Addendum.
-Exhibit A to this Addendum sets out certain information regarding Lightspeed’s processing of Customer Personal Data in accordance with Article 28(3) of the GDPR and, as applicable, equivalent requirements of the Data Protection Laws. For clarity, the instructions set forth in Exhibit A do not confer any right or impose any obligation on any Party to this Addendum.
-The Parties may make reasonable amendments to Exhibit A as they mutually agree is reasonably necessary to meet the requirements of the applicable Data Protection Laws, by providing written notice to the other Party
4. Lightspeed Personnel
- Lightspeed shall:
-Take reasonable steps to ensure the reliability of any Authorized Persons who have access to the Customer’s Personal Data, ensuring in each case that access is strictly limited to those individuals having a need to know and have access to the relevant Personal Data, as required for carrying out Lightspeed’s obligations under the Agreement, and to comply with Applicable Laws as it pertains to that individual’s duties to Lightspeed or Subprocessor; and
-Ensure that any Authorized Persons that process Personal Data have executed an agreement committing such Authorized Persons to a duty of confidentiality.
- Customer authorizes Lightspeed to appoint Subprocessors in accordance with Section 5 of this Addendum and subject to any restrictions set forth in the Agreement.
- Lightspeed may continue to use those Subprocessors already engaged by Lightspeed as of the Effective Date of this Addendum, provided, however, that Lightspeed ensures that each Subprocessor meets the obligations set forth in Section 5(d) of this Addendum.
- Lightspeed shall provide Customer with advance written notice of not less than 30 calendar days of Lightspeed’s intent to engage a new Subprocessor, including full details of the processing that is to be undertaken by the Subprocessor. If Customer provides notice to Lightspeed of any objections to a proposed Subprocessor, in writing, within fourteen (14) days’ of receiving Lightspeed’s proposed appointment of the Subprocessor, then:
-Lightspeed shall not engage the Subprocessor to process the Personal Data; or
-Lightspeed may partition the relevant Customer Personal Data to ensure that the new Subprocessor does not process any Customer Personal Data; or
-Lightspeed may elect to immediately suspend or terminate the processing of Personal Data under the Agreement until a mutually agreeable solution can be reached by the Parties or Lightspeed may immediately suspend or terminate the Agreement, in each case without penalty.
- As it pertains to each Subprocessor, Lightspeed shall:
-Conduct adequate due diligence on the Subprocessor, prior to engaging such Subprocessor for any processing activity involving any Customer Personal Data, to ensure that Subprocessor has the capability to provide an adequate level of protection for Customer’s Personal Data in accordance with the Agreement;
-Ensure the Lightspeed has a written contractual agreement with Subprocessor, which imposes data protection terms and conditions that offer at least the same level for protection for Customer’s Personal Data as those set forth in this Addendum and that also meet the requirements of Article 28(3) of the GDPR and any other Applicable Laws;
-Remain fully liable for any breach of this Addendum or the Agreement that is caused by an act, error or omission of Lightspeed’s Subprocessor;
-To the extent a contractual arrangement concerns the transfer of Customer Personal Data that necessitates the use of then-current Standard Contractual Clauses, Processor shall ensure that it enters into an agreement incorporating the Standard Contractual Clauses; and
-Upon request from Customer, make copies of its written contractual agreements with Subprocessors available to Customer to review, which may be redacted by Lightspeed, to remove commercial information not relevant to the purposes of this Addendum.
- Lightspeed shall reasonably cooperate with Customer to enable Customer to respond to any requests, complaints or other communications from a data subject, governmental, regulatory or judicial body in relation to the processing of Customer Personal Data under the Agreement, including requests from data subjects seeking to exercise their rights under Applicable Laws. If such request, complaint or communication is received by or otherwise made to Lightspeed, Lightspeed shall, to the extent not prohibited by Applicable Laws, immediately notify Customer and not respond to such communication without Customer’s express authorization.
- Except as otherwise prohibited by applicable law, if Lightspeed receives a subpoena, court order, warrant or other legal demand from a third party, including, but not limited to law enforcement of other governmental, regulatory or judicial authority, seeking the disclosure of Personal Data provided to it by Customer, Lightspeed shall not disclose any information without first immediately notifying Customer, in writing, of such request to allow Customer to challenge or protect against such disclosure, provided, however, that Lightspeed’s cooperation pursuant to this Subsection (b) of Section 6, shall be at Customer’s sole expense.
- Lightspeed shall provide reasonable assistance to Customer with data protection impact assessments, and consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of Customer by Articles 35 or 36 of the GDPR or similar provisions of a Data Protection Laws, in relation to the processing of Customer’s Personal Data and taking into account the nature of the processing and information available to Processors and Subprocessors.
7. Personal Data Breach
- In the event of a Personal Data Breach affecting Customer’s Personal Data, Lightspeed shall:
-Immediately notify Customer of the Personal Data Breach as soon as reasonably possible and without undue delay after Lightspeed first becomes aware of the occurrence of such Personal Data Breach involving Customer's Personal Data, including a Personal Data Breach suffered by a Subprocessor; and
-Provide Customer with sufficient information in order to allow Customer to comply with any obligations it may have to report or inform data subjects and/or Supervisory Authorities of the Personal Data Breach in accordance with Applicable Laws.
- Lightspeed shall take such measures and actions as appropriate to remedy or mitigate the effects of the Personal Data Breach and shall cooperate with Customer by providing regular updates and other reasonably requested information, to the extent available, about developments in connection with the Personal Data Breach response, investigation and remediation efforts.
- The contents and release of any press release, notification, public or regulatory announcement or communication concerning a Personal data Breach, which identifies either of the Parties to this Addendum shall require the mutual agreement of both Parties, except as otherwise required by Applicable Laws.
- As it concerns the processing of Personal Data pursuant to the Agreement and this Addendum, Lightspeed shall take into account the state of the art, costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons (“Risk Assessment”).
- Lightspeed and each relevant Subprocessor, in relation to processing Customer Personal Data under the Agreement or this Addendum, shall implement the appropriate technical and organizational measures to ensure a level of security appropriate to the Risk Assessment, including, as appropriate, the measures referenced in Article 32(1) of the GDPR.
- As part of the Risk Assessment in Section 8(a) of this Addendum, Lightspeed shall take into account the specific risks presented by such processing of a Personal Data Breach.
9. Audit Reports and Inspection
- Upon request by Customer, Lightspeed shall provide copies of all information necessary to demonstrate Lightspeed’s compliance with this Addendum.
- Lightspeed shall allow for and provide its reasonable cooperation with an audit under this Addendum, including inspections by Customer or a mutually agreed upon auditor, in relation to the processing of Customer’s Personal Data by Lightspeed, which shall be conducted at Customer's expense.
- Customer shall provide Lightspeed with reasonable advanced notice of any audit or inspection it desires to conduct pursuant to Section 9(b) of this Addendum and the Parties shall mutually agree upon the date and time of such audit and take reasonable efforts to avoid causing disruption to Lightspeed's premises, equipment, personnel and business while Customer or auditor personnel are on the premises conducting an audit as provided herein.
- Any of Customer's or the auditor's personnel will not be granted access to Lightspeed's premises unless such personnel provides reasonable evidence of their identity, which shall be provided to Lightspeed prior to the commencement of the audit or inspection.
- No more than one audit or inspection shall be permissible during any calendar year with respect to Lightspeed, except where Customer is required to carry out an audit by Data Protection Laws, a Supervisory Authority or a similar regulatory authority with responsibility for the enforcement of Data Protection Laws applicable to Customer and in each such case the audit shall be conducted at Customer's expense.
- Nothing in this Addendum shall be construed to preclude a Processor from immediately informing Customer of any instruction that the Processor, in its opinion, believes infringes the GDPR or Applicable Laws.
10. Deletion & Return of Customer Personal Data
- Upon Customer’s request, or upon termination or expiration of this Addendum or the Agreement, regardless of reason, Lightspeed shall promptly destroy or return to Customer all Customer Personal Data provided to Lightspeed, in its possession or control, including any Customer Personal Data processed by its Subprocessors.
- The requirement in Section 10(a) of this Addendum shall not apply to the extent that Lightspeed is required by Applicable Laws to retain some or all of the Customer Personal data, in which case, Lightspeed shall isolate and protect the Customer Personal Data from further processing.
11. Transfers of Customer Personal Data
- Lightspeed shall at all times provide a level of protection for Customer Personal Data that is adequate, wherever processed, in accordance with the requirements of Applicable Laws.
- Lightspeed shall not process or transfer any Personal Data to any geographic territory except the territory in which the Customer Personal Data was provided by Customer to Lightspeed.
- Lightspeed shall not permit Customer Personal Data to be processed or transferred unless: (i) Lightspeed has obtained Customer's prior written consent; and (ii) Lightspeed takes all such measures as are necessary to ensure such Processing or transfer is in compliance with Applicable Laws.
- Where Lightspeed processes Cusomter Personal Data under this Addendum that originates in the EEA, any such consent shall be conditioned on Lightspeed utilizing adequate safeguards under the Applicable Laws for a transfer of Customer Personal Data, such as the Standard Contractual Clauses.
- Lightspeed shall also be required to ensure that any Subprocessor Processing Customer's Personal Data agrees to implement and utilize adequate safeguards under Applicable Laws and in accordance with this Addendum, including the Standard Contractual Clauses.
- For the purposes of the Standard Contractual Clauses and only as it concerns Lightspeed and Customer, Lightspeed agrees that it is a “data importer” and Customer is the “data exporter” under the Standard Contractual Clauses.
- Each Party agrees to fully indemnify, defend, and hold harmless (“Indemnifying Party”) the other Party, including their officers, directors, shareholders, employees, agents and representatives from and against any and all liabilities, demands, losses, damages, costs, expenses, fines, amounts paid in settlements or judgments, including without limitation costs, reasonable attorneys’ fees, expert witness fees, investigation expenses and all other expenses and costs arising from or in connection with (i) the Indemnifying Party’s non-compliance with the Applicable Laws, including the Data Protection Laws; and (ii) a breach of the Indemnifying Party’s warranties, representations and covenants set forth in this Addendum.
- For purposes of this Addendum, the Parties hereby acknowledge and agree that to the extent the CCPA applies to the Agreement and this Addendum that Lightspeed is acting as a Service Provider for Customer and will adhere to the requirements of this Section 13. .
- Lightspeed shall not retain, use, or disclose any Customer Personal Information for any purpose other than the specific purpose of performing the Services specified in the Agreement, or as otherwise permitted by the CCPA, including retaining, using, or disclosing Customer Personal Information for a commercial purpose other than providing the Services specified in the Agreement. Lightspeed shall not (i) sell any Customer Personal Information and (ii) retain, use, or disclose Customer Personal Information outside of the direct business relationship between Lightspeed and Customer.
- Lightspeed shall not provide any Customer Personal Information to any Third Party without the prior written consent of Customer.
- Lightspeed will advise Customer promptly upon receiving any request from a consumer seeking to exercise their rights under the CCPA and will not respond to any such request without the express written permission of Customer.
- Lightspeed will take all reasonable security measures to protect against the unauthorized or unlawful Processing of Personal Information against a breach of security or data breach as defined under Applicable Laws ("Security Incident").
- In the event of any Security Incident, Lightspeed will promptly provide notice to Customer of the Security Incident and provide its reasonable cooperation to provide Customer with any information that may be required by Customer to provide appropriate notices under Applicable Laws to its customers or a government agency.
- Lightspeed hereby certifies that Lightspeed understands and agrees to comply with the restrictions set forth in this Section 13.
14. General Terms
- Except for the changes set forth in this Addendum, the Agreement shall remain unchanged and in full force and effect.
- In the event of any conflict between the provision of this Addendum and any provision in the Agreement, this Addendum shall control and take precedence. If there is a conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail and take precedence.
- The obligations imposed upon Lightspeed under this Addendum shall survive the expiration or termination of this Addendum so long as Lightspeed or a Subprocessor processes Personal Data on behalf of Customer.
- Without causing prejudice to the provisions in the Standard Contractual Clauses (Clauses 7 and 9):
-As it concerns any disputes or claims arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity, the Parties to the Addendum hereby agree and consent to the jurisdiction set forth in the Agreement; and
- In the event there are changes made to the Data Protection Laws as defined in this Addendum:
-Either Party may:
by providing at least thirty (30) calendar days’ written notice to the other Party, from time to time, propose any changes to the Standard Contractual Clauses as they apply to transfers that are subject to restrictions under the GDPR and subject to a Data Protection Law, which are required, as a result of any change in, or a decision of a competent authority under, that Data Protection Law, to allow such transfers to be made, or continue to be made, without breach of that Data Protection Law; and
propose any other amendments or changes to this Addendum, which the Parties reasonably consider to be necessary to address the requirements of any Data Protection Law.
- In the event that a Party provides notice to the other Party in accordance with Section 14(e)(i)(1) of this Addendum:
-Lightspeed and each Subprocessor shall promptly cooperate to ensure that equivalent amendments are made to any agreement put in place in Section 5 of this Addendum; and
-Customer shall not unreasonably withhold or delay agreement to any consequential amendments of this Addendum proposed by Lightspeed to protect the Subprocessors against additional risks associated with the amendments made under Sections 14(e)(i)(1) and/or 14(e)(ii)(1) of this Addendum.
- If Customer should provide notice under Section 14(e)(i)(2), the Parties shall promptly discuss the proposed amendments and negotiate, in good faith, those or alternative amendments designed to address the requirements identified in a Party’s notice as soon as is reasonably practicable.
- Neither Customer nor Lightspeed shall require the consent or approval of any or Subprocessor to amend this Addendum pursuant to Section 14(e)(ii) or otherwise.
- The Parties acknowledge and agree that a breach by Lightspeed of this Addendum shall constitute a material breach of the Agreement.
- In the event any provision of this Addendum is declared to be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in full force and effect. The invalid or unenforceable provision shall be amended as necessary to ensure its validity and enforcement, which preserving the Parties’ intentions or, if this is not possible, construed in a manner as if the invalid or unenforceable part had never been contained therein.
- This Addendum may not be modified except by a subsequent written instrument signed by both Parties.
- This Addendum may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute an original. The Parties are permitted to sign and deliver this Addendum by facsimile or email transmission or through technology infrastructure that permits and accepts digital signatures.
EXHIBIT A: DETAILS OF PROCESSING SERVICES CONCERNING THE PERSONAL DATA PROVIDED BY CUSTOMER THAT IS TO BE UNDERTAKEN BY LIGHTSPEED ON CUSTOMER’S BEHALF
In accordance with Article 28(3) of the GDPR, this Exhibit A contains certain details regarding the Processing of the Personal Data provided by Customer.
Subject Matter and Duration of the Processing Services Concerning Customer’s Personal Data
The subject matter and duration of the processing services that Lightspeed will undertake on Customer’s behalf are detailed in the Agreement and this Addendum.
The Nature and Purposes of the Processing Services
The nature and purposes of the processing services are set forth in the Agreement and this Addendum.
Types of Customer’s Personal Data
The types of personal data include contact details of Customer’s clients, including first name, last name, mailing address, telephone number, and email address. Certain Lightspeed products include the capability for the Customer to create customized fields.
Categories of Data Subject to whom the Customer’s Personal Data relates
The personal data pertains to Customer’s clients and customers.
Obligations and Rights of Customer
The obligations and rights of Customer are set forth in the Agreement and this Addendum.
For the purposes of the Clauses:
- ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the 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;
- ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the 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.
Obligations of the data exporter
The data exporter agrees and warrants:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- 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;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
-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;
-any accidental or unauthorised access; and
-any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- 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;
- 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;
- 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;
- that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub-processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or 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.
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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the 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 Member State in which 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 data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the 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 supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 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 (specify briefly your activities relevant to the transfer):
-Personal Data is collected from the Customer through web forms on data importer's website and over the telephone. Personal Data is also collected by Customer and inputted into data importer's Lightspeed offerings, including Lightspeed Quantum, Lightspeed Connect, and Lightspeed Automate.
-The data importer is (specify briefly activities relevant to the transfer):
-Upon receipt of such Personal Data from the data exporter, as outlined above, the data importer inputs Personal Data about Customer and Customer's users into databases for the creation of the Customer and user accounts. Personal Data inputted by the Customer into a Lightspeed product offering are maintained in a separate database.
-The personal data transferred concerns the following categories of data subjects:
-The personal data transferred concerns the data exporter's users and customers or contacts.
Categories of data
-The personal data transferred concerns the following categories of data:
-The personal data transferred concerns the contact details of data exporter's customers, including their name, address, email address, telephone, and other pertinent contact information, but certain Lightspeed products do contain the capability to collect data in customized fields, however, no sensitive data is permitted to be collected per the Lightspeed terms and conditions.
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) (or document/legislation attached):
Access to Personal Data that is transferred pursuant to the Data Processing Addendum and to the extent applicable, the Standard Contractual Clauses is limited to data importer's staff and any applicable service provider, who has a need to have access to such Personal Data for their job function.