Pilot Data Processing Agreement

VENDOR DATA PROCESSING AGREEMENT

A. This agreement (the “Data Processing Agreement”) is entered into by [Company] of [address] (the “Customer”) and Stimulus, Inc. (the “Service Provider”) (together the “Parties”) on [date] and supplements the [Services Agreement] entered into by the Parties dated [date] (the “Agreement”).

B. The Parties are entering into this Addendum in order to comply with their respective obligations under Article 28 of the EU General Data Protection Regulation (EU)2016/679 (the “GDPR”) and the California Consumer Privacy Act of 2018 (“CCPA”).

1. The Service Provider will act as a data processor or service provider with respect to the “Personal Data” (as defined under the GDPR, the CCPA, and any other applicable data protection, data privacy and data security laws (together the “Data Protection Laws”)) provided to it by the Customer in the course of it providing the services under the Agreement. The Customer is a “Business” under the CCPA and “Controller” under the GDPR. This Data Processing Agreement sets out the data processing obligations of the Service Provider to the Customer.

2. The Service Provider shall be entitled, with the Customer’s general authorisation, to use the sub-processors or sub-contractors appointed at the date of this Data Processing Agreement and shall be permitted to replace any of them or engage new sub-processors or sub-contractors to process any Personal Data. For any new sub-processors or sub-contractors, the Service Provider shall notify the Customer of such new appointments, thereby giving the Customer the right to object (if no objection is received within five business days of the notification, the Customer is deemed to have consented specifically to the appointment). The Service Provider shall at all times remain liable for the acts and omissions of the sub-processors as regards the processing of the Personal Data.

3. The Service Provider shall (and shall ensure that its sub-processors shall) with respect to any Personal Data processed in connection with the Agreement comply with Data Protection Laws as applicable to data processors, and service provider shall further:

(a) process the Personal Data only on instructions of the Customer and in accordance with the terms of this Agreement;

(b) keep the Personal Data confidential;

(c) taking into account the state of the art, costs of implementation and the nature, scope, context and purposes of processing, the Service Provider shall implement appropriate technical and organisational measures necessary to ensure a level of security appropriate to the risks of processing;

(d) not use, retain or disclose the Personal Data obtained as a result of the Agreement only for the purposes of providing the Services in the Agreement (except where permitted by the Data Protection Laws);

(e) not sell Personal Data to any other business or third party for monetary or other valuable consideration;

(f) notify the Customer without undue delay on becoming aware of a personal data breach as defined under applicable Data Protection Laws;

(g) taking into account the nature of the processing, implement appropriate technical and organisational measures, so far as possible and at the Customer’s cost, to provide reasonable assistance with requests of the Customer to fulfil its obligations of responding to rights requests from data subjects (as defined under the GDPR) or consumers (as defined under the CCPA) and with requests of the Customer to comply with its obligations to keep the Personal Data secure, the notification and/or communication of a Personal Data breach and implementing data protection impact assessments;

(h) promptly notify Customer of any rights request received by a data subject or consumer or if Service Provider becomes aware of any Personal Data breach involving Customer; and

(i) allow the Customer, and at the Customer’s costs, the right to audit its processing operations, systems and/or facilities where reasonably required by the Customer to assess the Service Provider’s compliance with this Data Processing Agreement and upon the agreed appointment of an auditor (at the Customer’s costs) or, at the Customer’s option, co-operate with reasonable requests of the Customer for information to demonstrate the Service Provider’s compliance with this Data Processing Agreement.

4. On the termination of the Agreement, the Service Provider shall return all copies of the Personal Data to the Customer or, at the Customer’s specific and written request, delete or deidentify all copies of the Personal Data subject to applicable legal obligations on the Service Provider to retain any such documents containing Personal Data.

5. The Service Provider shall not transfer Personal Data outside the European Economic Area without the prior written consent of the Customer or where a permitted derogation or safeguard under the GDPR applies. Service Provider and Customer specifically agree to the attached Standard Contractual Clause Agreement, attached and incorporated by reference as Exhibit A, with Customer as “Importer” and Service Provider as “Exporter.”

6. Service Provider’s obligations under this Addendum shall survive the termination of the Agreement and the completion of all Services subject thereto.

The above terms are acknowledged and agreed by the parties as indicated below.

Stimulus, Inc.……………………………. Date………………………………………………

Customer……………………………………… Date………………………………………………

EXHIBIT A

Standard Contractual Clauses

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organization:

[CUSTOMER]

tel.: …………….; •fax: …………….; e-mail: …………….

Other information needed to identify the organization

(the data exporter)

and

Name of the data importing organization:

Stimulus, Inc.

tel.: …………….; •fax: …………….; e-mail: …………….

Other information needed to identify the organization:

(the data importer)

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.

1. DEFINITIONS

1.1 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 “Directive”);

“the data exporter”

shall mean the controller who transfers the personal data;

“the data importer”

shall mean the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of these Clauses and who is not subject to a third country’s system ensuring to adequate protection within the meaning of Article 25(1) of the Directive;

“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 its instructions, the terms of the Clauses and the terms of the written subcontract;

“the applicable data protection law”

shall mean the legislation protecting the fundamental rights and freedoms of natural persons 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”

shall mean 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.

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 I which forms an integral part of the Clauses.

3. THIRD-PARTY BENEFICIARY CLAUSE

3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1.2 to 4.1.8, Clause 5.1.1 to 5.1.5, and 5.1.7 to 5.1.10, Clause 6.1 and 6.2, Clause 7, Clause 8.2, and Clauses 9 to 12 as third-party beneficiaries.

3.2 The data subject can enforce against the data importer this Clause, Clause 5.1.1 to 5.1.5 and 5.1.7, 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.

3.3 The data subject can enforce against the sub-processor this Clause 3.3, Clause 5.1 to Clause 5.1.5 and Clause 5.1.7, Clause 6, Clause 7, Clause 8.2, and Clause 9 to Clause 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.

3.4 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.

4. OBLIGATIONS OF THE DATA EXPORTER

4.1 The data exporter agrees and warrants:

4.1.1 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;

4.1.2 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 these Clauses;

4.1.3 that the data importer shall provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

4.1.4 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, 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;

4.1.5 that it will ensure compliance with the security measures;

4.1.6 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 the Directive;

4.1.7 that it agrees to forward the notification received from the data importer pursuant to Clause 5.1.2 and Clause 8(3) to the data protection supervisory authority if it decides to continue the transfer or to lift its suspension;

4.1.8 to make available to the data subjects upon request a copy of the Clauses set out in this Annex, with the exception of Appendix 2 which shall be replaced by 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;

4.1.9 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 subjects as the data importer under the Clauses; and

4.1.10 that it will ensure compliance with Clause 4.1 to Clause 4.1.9.

5. OBLIGATIONS OF THE DATA IMPORTER¹

5.1 The data importer agrees and warrants:

5.1.1 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;

5.1.2 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;

5.1.3 that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

5.1.4 that it shall promptly notify the data exporter about:

(a) 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;

(b) any accidental or unauthorized access; and

(c) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

5.1.5 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;

5.1.6 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;

5.1.7 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;

5.1.8 that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

5.1.9 that the processing services by the sub-processor will be carried out in accordance with Clause 11; and

5.1.10 to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

6. LIABILITY

6.1 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

6.2 If a data subject is not able to bring a claim for compensation in accordance with Clause 6.1 against the data exporter arising out of a breach by the data importer or its sub-processor of any of its 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 sub-processor of its obligations in order to avoid its own liabilities.

6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in Clauses 6.1 and 6.2, 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.

7. MEDIATION AND JURISDICTION

7.1 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:

7.1.1 to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

7.1.2 to refer the dispute to the courts in the Member State in which the data exporter is established.

7.2 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.

8. COOPERATION WITH SUPERVISORY AUTHORITIES

8.1 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.

8.2 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.

8.3 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 Clause 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5.1.2.

9. GOVERNING LAW

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

10. VARIATION OF THE CONTRACT

The parties undertake not to vary or modify the terms of 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.

11. Sub-processing

11.1 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 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.²

11.2 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 Clause 6.1 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.

11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in Clause 11.1 shall be governed by the law of the Member State in which the data exporter is established, namely Belgium.

11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1.10, which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

12. OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES

12.1 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.

12.2 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 Clause 12.1.

On behalf of the data exporter:

Name (written out in full): ………………………………………………………………………………

Position: ………………………………………………………………………………………………….

Address: ………………………………………………………………………………………………….

Other information necessary in order for the contract to be binding (if any): None

Signature: …………………………………………………………………………………………………

On behalf of the data importer:

Name (written out in full): ………………………………………………………………………………

Position: ………………………………………………………………………………………………….

Address: ………………………………………………………………………………………………….

Other information necessary in order for the contract to be binding (if any): ………….…

Signature: ……………………………………………………………………………………………….

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties

(*) The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix)

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

[Brief description]

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

[Brief description]

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

[Brief description]

Categories of data

The personal data transferred concern the following categories of data (please specify):

[Brief description]

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

[Brief description]

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

[Brief description]

DATA EXPORTER

Name: …………………………………………………

Authorized signature

…………………………………………………………

DATA IMPORTER

Name: …………………………………………………

Authorized signature

………..……………………………………………….

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4.1.4 and 5.1.3 (or document/legislation attached):

[Stimulus, Inc.’s Written Information Security Plan]