DATA PROCESSING AGREEMENT

This Data Processing Agreement including its annexes (“Agreement”, “Data Processing Agreement”) will be effective and replace any previously applicable data processing terms and shall supersede all terms related to data processing included in AfterShip Privacy Policy and AfterShip Terms and Conditions as from the Effective Date (as defined below).

Between:

(1) User, a company incorporated under the laws of the Data Controller Country with a registered User Address (the “User”, “Data Controller” or the “Controller”); and

(2) AfterShip, Ltd., a company constituted under the laws of Hong Kong with an address at Unit 2, 38/F, One Midtown, 11 Hoi Shing Road, Tsuen Wan, Hong Kong (“AfterShip”, the “Data Processor” or “Processor”)

(together the “Parties” and the “Party” shall be construed accordingly).

Recitals

A. The Data Controller provides goods and/or services. The Data Controller acts as the data controller of personal data in the course of providing the goods and services including personal data of its clients/end-users, personal data of its employees and representatives, and any other relevant personal data (“Data” and/or “Personal Data”).

D. The Data Processor will process Data on behalf of the Data Controller to enable the Data Processor to provide Services to the Data Controller according to the AfterShip Terms of Use or the Master Services Agreement whichever is applicable between the Parties (the “Purpose”), and the Data Controller will make Data available to the Data Processor in connection with this Purpose.

E. The Parties intend that the processing activities carried out by the Data Processor on behalf of the Data Controller shall comply with the provisions of this Agreement.

1. Definitions

All terms in the present Agreement shall have the meaning attributed to them in the Master Services Agreement or the Terms and Conditions of Use, whichever is applicable between the Parties. Words and expressions used in this Agreement but not defined herein shall have the meanings given to such words and expressions (i) for EU Controller in the General Data Protection Regulation (2016/679) (“GDPR”), (ii) for International Controller in any and all applicable data protection laws and regulations (“Applicable Data Protection Laws”). This Agreement, together with the schedules and appendixes thereto and the Master Services Agreement or the Terms and Conditions of Use, whichever is applicable between the Parties, contain the entire understanding of the parties concerning the subject matter hereof and supersede all prior agreements and understandings, oral or written, concerning such matters, which the parties acknowledge have been merged into such documents, schedules and appendixes.

In the present Agreement, when used with the initial letters capitalized, in addition to terms defined elsewhere in the Agreement, the following terms shall have the following meanings:

AfterShip Customers means any and all End-Users using the Application.

Application means the mobile software application of AfterShip which AfterShip Customers use to allow them to access, manage, and process their Tracking Data.

Data Controller Country means the country under which the Data Controller is incorporated as included in its User Registered Address.

Effective Date shall mean the date on which the Data Controller accepted, or the parties otherwise agreed to, this Agreement. This information will be accessible on the User Account.

End-User means any individual or entity which Tracking Data is being processed by AfterShip as part of the Service provided to the User.

EU Controller means any User whose User Registered Address is situated in a member country of the European Union.

International Controller means any User whose User Registered Address is not situated in a member country of the European Union.

Tracking Data means any data related to parcel shipping including namely but not exclusively order number, order value, order date, item name, item value, item amount, item weight, tracking number, carrier name, shipping method, box type, parcel weight, ship date, ship from address, End-User name, End-User email, End-User phone number, End-User's shipping address, store name, store website, carrier preferences, notification content, notification preferences, delivery status, delivery location, delivery date, signed by name, expected delivery date, shipping label file, shipping rates, manifest file, return reason, return method, resolution type, returns product images, refund amount, returns a date.

User Registered Address shall mean the official registered address of the User as shown in User Account.

2. Details of the Processing Operations

Data Processor will process, use, modify, collect, and store the data within the meaning of Data Protection Laws and Regulations. Data Processor will process Data for the entire duration of the performance of the Services for Data Controller, and longer as may be required by law or to meet necessary retention periods.

The subject matter of the processing, including the processing operations, carried out by the Data Processor on behalf of the Data Controller and the instructions of the Data Controller to the Data Processor are described as follows:

a. For Tracking Services, processing covers:

(i) categories of Personal Data:

  • Order Information
  • Shipping Information
  • Customer Information
  • User Information
  • Tracking Information

(ii) categories of data subjects: end-customers and merchant representatives

(iii) nature and purpose of the processing:

All Personal Data processing is linked to the use of the AfterShip Services through the AfterShip Site and Software to:

  • Help merchants to provide a branded tracking experience to end customers
  • Help merchants to send delivery email or SMS notifications to end customers
  • Help merchants to manage the delivery status of all shipments in one place
  • Help merchants to monitor shipping performance
  • Help merchants to customize tracking and notification experience

b. For Postmen Services, processing covers:

(i) categories of Personal Data:

  • Order Information
  • Shipping Information
  • Customer Information
  • User Information
  • Carrier Account Information
  • Label & Rates Information

(ii) categories of data subjects: end-customers and merchant representatives

(iii) nature and purpose of the Processing:

All Personal Data Processing is linked to the use of the AfterShip Services through the AfterShip Site and Software in order to:

  • Help merchants to generate and print shipping labels
  • Help merchants to calculate and compare shipping rates
  • Help merchants to manifest (i.e. send data to carriers)
  • Help merchants to view shipping performance
  • Help merchants to manage all carrier account information in one place

c. For AfterShip Returns Center Services, Processing covers:

(i) categories of Personal Data:

  • Order Information
  • Shipping Information
  • Customer Information
  • User Information
  • Returns Information

(ii) categories of data subjects: end-customers and merchant representatives

(iii) nature and purpose of the Processing:

All Personal Data Processing is linked to the use of the AfterShip Services through the AfterShip Site and Software in order to:

  • Help merchants to provide a branded returns experience to end-customers
  • Help merchants to send returns status updates notifications to end-customers
  • Help merchants to manage all returns request in one place
  • Help merchants to monitor returns performance
  • Help merchants to customize returns and notification experience

1.1 The different categories of Personal Data cover the following elements:

Order Informationorder number, order value, order date, item name, item value, item amount, item weight
Shipping Informationtracking number, carrier name, shipping method, box type, parcel weight, ship date, ship from address
Customer Informationcustomer name, customer email, customer phone number, customer's shipping address
User Informationuser name, user email, password, store name, store website, social media profiles, brand logo, marketing banner, payment information, carrier preferences, notification content, notification preferences, account settings
Tracking Informationdelivery status, delivery location, delivery date, signed by name, expected delivery date
Connected Email Informationemail content, email date
Carrier Account Informationcarrier account number, carrier account credentials
Label & Rates Information shipping label file, shipping rates, manifest file
Returns Informationreturns reason, returns method, resolution type, returns product images, refund amount, returns date

3. Obligations of the Data Controller

3.1. The Data Controller determines the purposes for which Data are being or will be processed and the manner in which they are being or will be processed.

3.2. The Controller shall abide by any applicable data protection laws and regulations including namely (i) the GDPR and the 2002/58/EC Directive on Privacy and Electronic Communications for EU Controllers, (ii) the Applicable Data Protection Laws for International Controllers, and (iii) any further applicable legislative acts that may repeal, amend or otherwise complement the aforementioned acts, as well as -as may be applicable- any implementing or national legislation or governmental regulations relative to the foregoing data protection laws and regulations in general (“Data Protection Laws and Regulations”).

3.3. The Data Controller acknowledges that with respect to Data provided to the Data Processor according to this Agreement, it shall comply with the following obligations:

  • implementing appropriate technical and, organizational measures to ensure and to be able to demonstrate that processing is performed in accordance with Data Protection Laws and Regulations;
  • establishing a procedure for the exercise of the rights of the individuals whose data are collected;

  • only processing data that have been lawfully and validly collected and ensuring that such data is relevant and proportionate to the respective uses;

  • process and collect all Personal Data in a valid and lawful manner, in accordance with the legal grounds prescribed by Data Protection Laws and Regulations, in particular obtaining the necessary consents when required, for example when conducting direct marketing ;

  • meet all transparency obligations, in particular, relative to the notification of the necessary informational elements to data subjects, including notably on the existence of international transfers and the recipients of Personal Data. The Controller shall demonstrate compliance with the transparency obligations by providing documentation to that effect to the Processor, upon the signature of the present Data Processing Agreement. Any update, revision, or other modification to said documents shall also be notified to the Processor.

  • implementing appropriate technical and organizational measures to ensure a level of security appropriate to the risk, in accordance with the requirements of applicable Data Protection Laws and Regulations, as well as with industry standards. The technical, organizational, and confidentiality measures implemented shall be suitable for protecting the Data against any accidental or unlawful destruction, accidental loss, alteration, unauthorized or unlawful disclosure or access, in particular when the processing involves data transmission over a network, and against any other forms of unlawful or unauthorized processing; and

  • taking reasonable steps to ensure compliance with the provisions of the applicable Data Protection Laws and Regulations, this Agreement by its personnel and by any person accessing or using Data on its behalf.

3.4. The Data Controller recognizes that the Processor shall process Tracking Data upon AfterShip Customer’s request through the Application. Any set of Tracking Data processed upon AfterShip Customer’s request shall be deemed under the control of AfterShip for the performance of AfterShip Customer’s requests through the Application. The User acknowledges that in the framework of the performance of AfterShip Customer’s requests through the Application, AfterShip shall be considered as an independent controller regarding the specific set of Tracking Data being processed. In this respect, AfterShip shall exercise the requisite rights and obligations as Controller.

4. Obligations of the Data Processor

4.1. The Processor undertakes to comply with all applicable Data Protection Laws and Regulations.

4.2. Data Processor shall:

  • taking into account the nature of the processing, assist Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Data Controller's obligation to respond to requests for exercising the data subject's rights under applicable Data Protection Laws and Regulations. Data Processor may charge an additional fee for the administration of such requests;

  • assist Data Controller in ensuring compliance with the obligations under applicable Data Protection Laws and Regulations in relation to the security of processing, to the notification of any breach of Personal Data to supervisory authorities and data subjects where relevant, to the carrying out of data protection impact assessments where required and to prior consultation of the supervisory authority;

  • notify the Controller of a personal data breach relative to Personal Data processed under the Data Processing Agreement, within 48hrs after having become aware of it, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;

  • ensure that only those persons strictly necessary to perform the present Data Processing Agreement, acting under the authority of the Processor, have access to the Personal Data and are subject to the necessary confidentiality obligations.

  • at the choice of Data Controller, delete or returns all such Personal Data to Data Controller after the end of the provision of the Products and Services under the Agreement, and delete existing copies unless applicable law requires the storage of the Personal Data;

  • make available to Data Controller all information necessary to demonstrate compliance with these obligations and allow for and contribute to audits in this respect, including inspections conducted by Data Controller or another auditor mandated by Data Controller; and

  • when processing Personal Data outside of the EEA and to the extent necessary, take all reasonable steps to implement one of the mechanisms foreseen under the applicable Data Protection Laws and Regulations to ensure an adequate level of protection for Personal Data processing activities.

4.3. Audit and inspection costs as well as any other unreasonable expenses for compliance with the foregoing obligations in this clause shall be borne by the Data Controller.

4.4. Data Processor represents and warrants that it processes all Personal Data in accordance with the data protection laws and regulations. More specifically in this respect, Data Processor ensures that, as a processor, it shall process all Personal Data in accordance with the data protection laws and regulations on valid legal grounds.

4.5 Data Processor has implemented appropriate technical and organizational measures as provided in Schedule 1 to ensure a level of security appropriate to the particular risks that are presented by Data processing activities hereunder, in particular protecting Data from an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed by the Processor.

5. Treatment of Personal Data – Export outside of EEA/Export outside of Data Controller Country

5.1. Data Processor shall only process Personal Data on documented instructions from Data Controller, including with regard to transfers of Personal Data to a third country or an international organization unless required to do so by applicable Data Protection Laws and Regulations to which Data Processor is subject; in such case, Data Processor shall inform the Data Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

5.2. This Agreement sets out Data Controller’s instructions for Personal Data processing activities, Data Processor shall process Personal Data as reasonably necessary for the performance of the Purposes (i.e. all Services and as otherwise provided for under the Master Services Agreement or the Terms and Conditions of Use, whichever is applicable between the Parties).

5.3. Data Controller further acknowledges that Data Processor, as a company based in Hong Kong, processes Personal Data outside of the Data Controller Country, outside of the European Economic Area (EEA) and that Data Processor uses sub-contractors based outside of the Data Controller Country and outside of EEA, namely in the USA.

6. Subprocessors

6.1. Data Controller expressly agrees that the Data Processor may use and engage all sub-processors provided in Schedule 2. Any intended changes concerning the addition or replacement of such processors shall be notified to the Data Controller. The Data Controller can object to such changes by writing to [email protected]. All objections must be reasonably motivated. In such case, the Processor will take reasonable steps to accommodate the Data Controller, however in the case that a mutual agreement cannot be found, Data Processor can immediately terminate all Services to Data Controller without indemnification or further notice, notwithstanding any other provisions in the Agreement.

6.2. Where Data Processor engages a sub-processor for carrying out specific processing activities on behalf of Data Controller, Data Processor shall impose on that sub-processor the same data protection obligations as set out herein, by way of a contract or other legal act under applicable law and shall ensure compliance and indemnify Data Controller in respect of any failure by the sub-processor to comply with the data protection obligations. Where that other processor fails to fulfil its data protection obligations, Data Processor shall remain fully liable to Data Controller for the performance of that other processor's obligations.

7. Governing law and jurisdiction

7.1. This Data Processing Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of Hong Kong.

7.2. The parties to this Agreement irrevocably agree that the courts of Hong Kong shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Data Processing Agreement or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE A

Technical and Organizational Security Measures

In accordance with Clause 4 of the Agreement, the Data Processor will adopt and maintain appropriate (including organizational and technical) security measures in dealing with the Data in order to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of such Data, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. In determining the technical and organizational security measures required by Clause 4 of the Agreement, the Data Processor will take account of the state of the art, the 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.

The Data Processor will implement the following specific security measures, as applicable:

AFTERSHIP

SPECIFICATION OF THE SECURITY MEASURES

Category Subcategory Relevant Security Issue AfterShip Implementation
Privacy / Security Data Retention and Storage Data storage All data, including collecting personal data, are stored on the cloud through Amazon Web Services and Google Cloud Platform. The data centers hosting the cloud services are located in the USA.
Privacy / Security Data Retention and Storage Personal data retention and erasure There are defined retention periods for collecting personal data. If the personal data are no longer required to be retained, they are systematically destroyed and/or anonymized.
Security Access Control Management Implemented password policies, password controls
Encryption/hashing of passwords
“One Password” is used for management of user authentication and password management.
The passwords policy is implemented as follows:
- Minimum password length: 15 characters
- Combinations of characters, symbols, and numbers
- 2FA is required for access to Google services, Github, and Amazon web services
Password are hashed by SHA-1 algorithm with a random salt.
Security Access Control Management Immediate removal of access rights for users leaving the organization Employee off-boarding procedures are in place to ensure employees' access rights are removed when leaving
Security Business Continuity Management Backup policies and frequency Daily backup performed by Amazon Web services at primary and secondary data centers
Security Business Continuity Management Disaster recovery sites in multiple/diverse geographic locations The data centers hosting the cloud services are located in different locations across the USA (Central region and East region).
Privacy / Security Governance Security awareness training program currently in place: topics and frequency Basic security awareness training when onboarding employees
Topics: general obligations under various information security policies, standards, procedures, guidelines, laws, regulations, contractual terms and standards of ethics and acceptable behavior.
Privacy / Security Incident Response Management -Incident response procedures in place
-Existence of a team with defined roles and responsibilities
- Existence of communication procedures regarding security incidents such as data breaches?
-Notification timeframe regarding third-parties
Data breach response plan in place (Detect, Contain, Analyse, Notify, Respond, Document, Learn)
Data breach response team checklist, with defined roles and responsibilities

SCHEDULE B

List of authorized Subcontractors/Subprocessors

  1. All the carriers/shipping companies provided in the following document: https://docs.aftership.com/api/4/supported-couriers.

  2. All the following authorized subprocessors: https://www.aftership.com/terms/subprocessors


SCHEDULE C

ONLY APPLICABLE TO EU CONTROLLERS

Data Protection Annex (Direct Model Clauses)

This Schedule to the Data Processing Agreement (“Agreement”) (“Schedule” or the “Clauses”) is effective as of Effective Date between EU Controller with its registered office at User Registered Address (“Data Exporter”), and AfterShip, Ltd., with its principal place of business at Rm. B1, 4/F, Tai Cheung Factory Bld., 3 Wing Ming Street, Cheung ShaWan, Kowloon, Hong Kong (“Data Importer”).

This Schedule is only applicable to EU Controllers.

RECITALS

  1. The Data Exporter is engaged in the business of providing goods and/or services (the “User Service”).
  2. Pursuant to the Agreement the Data Importer provides certain services to the Data Exporter and the provision of such services requires the transfer of personal data from the Data Exporter to the Data Importer.
  3. To enhance the level of protection afforded to personal data transferred by the Data Exporter to the Data Importer, the Parties wish to enter into the standard contractual clauses for the data controller to data processor transfers approved by the European Commission in decision 2010/87/EU.

The Parties HAVE AGREED on the following Contractual 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

For the purposes of this Schedule:

1.1. '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;

1.2. 'the Data Exporter' means the controller who transfers the personal data;

1.3. '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, namely KUDO, Inc.;

1.4. 'the subprocessor' means any processor engaged by the Data Importer or by any other subprocessors of the Data Importer who agrees to receive from the Data Importer or from any other subprocessor of the Data Importer personal data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

1.5. '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 in accordance with its User Registered Address;

1.6. '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.

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.

3. Third-Party Beneficiary Clause

3.1. The data subject can enforce against the Data Exporter this Clause 3, paragraphs 4.2 to 4.9, paragraphs 5.1 to 5.5, and 5.7 to 5.10, paragraphs 6.1 and 6.2, Clause 7, paragraph 8.2, and Clauses 9 to 12 as a third-party beneficiary.

3.2. The data subject can enforce against the Data Importer this Clause, paragraphs 5.1 to 5.5 and 5.7, Clause 6, Clause 7, paragraph 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 subprocessor this Clause, paragraphs 5.1 to 5.5 and 5.7, Clause 6, Clause 7, paragraph 8.2, and Clauses 9 to 12, in cases where both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the Data Exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

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

The Data Exporter agrees and warrants:

4.1. 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;

4.2. that it has instructed and throughout the duration of the personal data processing services will instruct the Data Importer to process the personal data transferred only on the Data Exporter's behalf and in accordance with the applicable data protection law and the Clauses;

4.3. that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

4.4. 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;

4.5. that it will ensure compliance with the security measures;

4.6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; 4.7. to forward any notification received from the Data Importer or any subprocessor pursuant to paragraph 5.2 and paragraph 8.3 to the data protection supervisory authority if the Data Exporter decides to continue the transfer to lift the suspension;

4.8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information; 4.9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of the data subject as the Data Importer under the Clauses; and

4.10. that it will ensure compliance with paragraphs 4.1 to 4.9.

5. Obligations of the Data Importer

The Data Importer agrees and warrants:

5.1. 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;

5.2. 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;

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

5.4. 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;

5.5. 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;

5.6. at the request of the Data Exporter to submit its data processing facilities for an 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;

5.7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the Data Exporter;

5.8. that, in the event of subprocessing, it has previously informed the Data Exporter and obtained its prior written consent;

5.9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;

5.10. to send promptly a copy of any subprocessor 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 subprocessor 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 paragraph 6.1 against the Data Exporter, arising out of a breach by the Data Importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the Data Exporter has factually disappeared or ceased to exist in law or has become insolvent, the Data Importer agrees that the data subject may issue a claim against the Data Importer as if it were the Data Exporter, unless any successor entity has assumed the entire legal obligations of the Data Exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The Data Importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

6.3. If a data subject is not able to bring a claim against the Data Exporter or the Data Importer referred to in paragraphs 6.1 and 6.2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the Data Exporter and the Data Importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the Data Exporter or the Data Importer, unless any successor entity has assumed the entire legal obligations of the Data Exporter or Data Importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

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:

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

(b) to refer the dispute to the courts in the Member State in which the Data Exporter is established in accordance with its User Registered Address.

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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the Data Exporter under the applicable data protection law.

8.3. The Data Importer shall promptly inform the Data Exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the Data Importer, or any subprocessor, pursuant to paragraph 8.2. In such a case the Data Exporter shall be entitled to take the measures foreseen in paragraph 5.2.

9. Governing Law

The Clauses shall be governed by the law of the Member State in which the Data Exporter is established in accordance with its User Registered Address.

10. Variation of the Contract

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

11. Subprocessing

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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the Data Importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the Data Importer shall remain fully liable to the Data Exporter for the performance of the subprocessor's obligations under such agreement.

11.2. The prior written contract between the Data Importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 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 subprocessor shall be limited to its own processing operations under the Clauses.

11.3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 11.1 shall be governed by the law of the Member State in which the Data Exporter is established in accordance with its User Registered Address.

11.4. The Data Exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the Data Importer pursuant to paragraph 5.10, 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 subprocessor shall, at the choice of the Data Exporter, return all the personal data transferred and the copies thereof to the Data Exporter or shall destroy all the personal data and certify to the Data Exporter that it has done so, unless legislation imposed upon the Data Importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the Data Importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

12.2 The Data Importer and the subprocessor warrant that upon request of the Data Exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 12.1.

Appendix 1

This Appendix 1 forms part of the Schedule C and must be completed and signed by the parties.

Data Exporter

The Data Exporter is a company incorporated in the Data Controller Country as described in its User Registered Address.

Data Importer

The Data Importer is a provider of tracking information services to the Data Exporter, as more particularly detailed in the Master Service Agreement or the Terms and Conditions of Use, whichever being applicable between the Parties.

Data subjects

The Personal Data transferred concern the following categories of data subjects: please refer to the Data Processing Agreement.

Categories of data

The Personal Data transferred is: please refer to the Data Processing Agreement. Such personal data may be in the following forms: please refer to the Data Processing Agreement.

Special categories of data

The personal data transferred may concern the following special categories of data: N/A.

Processing operations

The personal data transferred may be subject to the following processing activities: for the provision of services as more particularly described in the Master Service Agreement or the Terms and Conditions of Use, whichever being applicable between the Parties and as described in the Data Processing Agreement.

Appendix 2

This Appendix 2 forms part of the Schedule C 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(d) and 5(c) (or document/legislation attached): As detailed in Schedule B of the Agreement.