Data processing agreement

This Data Processing Agreement (“DPA”) forms part of the Master Software and Services Agreement or other principal agreement between the Parties that references this DPA (the “Agreement”) between: (i) Tango Technology, Inc., a Delaware corporation (“Vendor”) and (ii)  Customer (as defined in the Agreement) (“Customer”) (each a “Party” and, collectively, the “Parties”).

Except as modified below, the terms of the Agreement shall remain in full force and effect. With respect to provisions regarding Processing of Customer Data (as that term is defined below), in the event of a conflict between this DPA and the Agreement, or any other agreement between the Parties, the provisions of this DPA shall control. Capitalized terms not defined in this DPA shall have the meaning as defined in the Agreement.

This DPA will only apply to the extent that the Applicable Data Protection Laws apply to the Processing of Customer Data.

1. Definitions.

Applicable Data Protection Laws” shall mean, as applicable, (a) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”), (b) the Federal Data Protection Act of 19 June 1992 (Switzerland), and/or (c) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. and its implementing regulations (“CCPA”).

Customer Data” means Personal Information that is Processed by Vendor on behalf of Customer in Vendor’s provision of the Services.

Data Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Customer Data transmitted, stored or otherwise Processed.

Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular identified or identifiable individual or household, regardless of the media in which it is maintained, that may be Processed at any time by Vendor in connection with the performance of this DPA or the Agreement.

Services” means the services provided by Vendor to Customer as described in the Agreement.

Standard Contractual Clauses” means the contractual clauses established by the European Commission concerning the international transfer of Customer Data, as set out in Annex 2.

Subprocessor” means any third party (excluding any employee or subcontractor of Vendor) retained by or on behalf of Vendor to Process Customer Data in connection with the Agreement.

Technical and Organizational Measures” means security measures implemented by Vendor appropriate to the type of Customer Data being Processed and the Services being provided by Vendor to protect Customer Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure.

Additionally, as used in this DPA, the terms “Business”, “Business Purpose”, “Data Controller”, “Data Processor”, “Data Subject”, “Processing” (and its derivatives), “Sell” (and its derivatives), and “Service Provider” shall have the meanings ascribed to them in the Applicable Data Protection Laws.

2. Data Processing Agreement.


2.1 Generally.

2.1.1 The Parties acknowledge and agree that Customer is acting as a Business and Data Controller, and has the sole and exclusive authority to determine the purposes and means of the Processing of Customer Data Processed under this DPA, and Vendor is acting solely as a Service Provider and Data Processor on behalf and under the instructions of Customer. Vendor acknowledges and agrees that between Vendor and Customer, Customer owns all Customer Data.

2.1.2 Annex 1 to this Addendum sets out certain information regarding the Vendor’s Processing of Customer Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Applicable Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Vendor from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this Section 3.1) confers any right or imposes any obligation on any party to this Addendum.

2.1.3 Vendor shall Process Customer Data only on documented instructions from Customer, unless required to do so by applicable law; in such a case, Vendor shall inform Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. For the avoidance of doubt, Customer specifically instructs Vendor to Process Customer Data as necessary for the purpose of providing the core functionality of the Services, to perform Vendor's obligations under the Agreement and as further documented in any other written instructions given by Customer and acknowledged by Vendor as constituting instructions for purposes of this DPA. Vendor shall immediately inform Customer if, in its opinion, an instruction by Customer infringes Applicable Data Protection Laws.

2.1.3 Vendor shall ensure that persons authorized to Process Customer Data on its behalf have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

2.1.4 Vendor shall not (1) Sell Customer Data, or (2) retain, use or disclose Customer Data (i) for any purpose other than for the specific purpose of performing the services specified in the Agreement, or (ii) outside of the direct business relationship between Customer and Vendor.  Vendor certifies that it understands and will comply with the requirements and restrictions set forth in this Section 2.1.4.

2.2 Technical and Organizational Measures.

2.2.1 Vendor shall take all measures required pursuant to Article 32 of the GDPR, including, without limitation, implementing appropriate Technical and Organizational Measures to ensure a level of security appropriate to the risk. Such Technical and Organizational Measures shall take into account: (i) the state of the art, (i) the costs of implementation, (iii) the nature, scope, context and purposes of Processing and (iv) the risk of varying likelihood and severity for the rights and freedoms of Data Subjects.

2.2.2 Taking into account the nature of the Processing, Vendor shall assist Customer by appropriate Technical and Organizational Measures, to the extent possible, for the fulfilment of Customer’s obligation to respond to requests for exercising Data Subjects’ rights laid down in Chapter III of the GDPR.

2.3 Subprocessors.

2.3.1 The Subprocessors currently engaged by Vendor are available at tango.us/subprocessors (“Vendor Website”). Customer specifically authorizes and instructs Vendor to engage the Subprocessors listed on the Vendor Website.

2.3.2 Customer also generally authorizes Vendor to engage, from time to time, any other Subprocessors in connection with the provision of the Services, provided that Vendor shall inform Customer of any intended changes concerning the addition or replacement of any Subprocessors via Vendor’s Website or through the Service. If Customer objects to Vendor engaging any additional or replacement Subprocessor, Customer may, within ten (10) days of being informed of such intended change, indicate its objection by contacting Vendor as specified in the Agreement. Such notice shall state, in sufficient specificity, the reasonable and documented grounds relating to a Subprocessor’s non-compliance with Applicable Data Protection Laws. In the event that Vendor is unwilling or unable to provide a reasonably acceptable substitute, Customer may terminate the Agreement and its use of the Services as provided in the Agreement. This termination right is Customer’s sole and exclusive remedy if Customer objects to any additional or replacement Subprocessor.

2.3.3 Where Vendor engages a Subprocessor that will have access to Customer Data, Vendor shall ensure that the same as or equivalent to data protection obligations set out in this Section 2 shall be imposed on that Subprocessor by way of a contract. Such contract shall provide sufficient guarantees to implement appropriate Technical and Organizational Measures in such a manner that the Processing will meet the requirements of Applicable Data Protection Laws. Where such Subprocessor fails to fulfil its data protection obligations, Vendor shall remain fully liable to Customer for the performance of the Subprocessor’s obligations.

2.4 Assistance to Customer.

Taking into account the nature of Processing of Customer Data and the information available to Vendor, Vendor shall assist Customer in ensuring compliance with the obligations laid out in Articles 32 to 36 of the GDPR. In addition to any other obligation of Vendor under this DPA, such assistance shall include notifying Customer, without undue delay, after becoming aware of a Data Security Breach.

2.5 Data Deletion.

2.5.1 Vendor shall, at the choice of Customer: (i) delete or return all Customer Data to Customer after such Customer Data is no longer necessary for the provision of the Services, and (ii) delete existing copies of such Customer Data.

2.5.2 In the event that a Data Subject submits a Customer Data deletion request to Vendor, Customer hereby instructs and authorizes Vendor to delete or anonymize the Data Subject’s Customer Data on Customer’s behalf.

2.6 Information and Audits.

2.6.1 Vendor shall make available to Customer all information necessary to demonstrate compliance with its obligations as a Vendor laid out in this Section 2 and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.

2.6.2 Any audit pursuant to Section 2.6.1 shall be permitted only on reasonable advance notice to Vendor and subject to appropriate confidentiality undertakings (including, without limitation, redacting any information relating to another Customer of Vendor, Vendor’s internal accounting or financial information, and Vendor’ trade secrets).

2.6.3 Vendor may charge a fee (based on Vendor’s reasonable costs) for any audit under Section 2.6.1. Vendor will provide Customer with further details of any applicable fee, and the basis of its calculation, in advance of any such audit. Customer will be solely responsible for any fees charged by any third party auditor appointed by Customer to execute any such audit.

2.6.4 Vendor may object to any third party auditor appointed by Customer to conduct any audit under Section 2.6.1 if the auditor is, in Vendor’s reasonable opinion, not suitably qualified or independent, a competitor of Vendor or otherwise manifestly unsuitable. Any such objection by Vendor will require Customer to appoint another auditor or conduct the audit itself.

2.7 Data Transfers.

2.7.1 To the extent that any Customer Data is accessed or otherwise Processed by Vendor and/or its Subprocessors in jurisdictions outside the European Union (“EU”) or European Economic Area, the Parties have entered into the Standard Contractual Clauses as set out in Annex 2 to this Addendum, which Standard Contractual Clauses are incorporated herein by reference. The Parties agree that any disputes arising under the Standard Contractual Clauses shall be treated as if they had arisen under the Addendum. Notwithstanding the foregoing, the Standard Contractual Clauses shall not apply if the jurisdiction in which the Vendor or its Subprocessors access or otherwise Process Customer Data has been deemed by the EU as a jurisdiction with adequate protection for Customer Data.

2.7.2 Vendor shall ensure that, if applicable, its agreements with its Subprocessors incorporates at all relevant times the Standard Contractual Clauses set out in Annex 2 to this Addendum.

2.7 Data Captured via Customer’s Use of Services.

Customer acknowledges and agrees that Customer’s use of the Services may result in the capture of Personal Information of third parties. Customer further acknowledges and agrees that it is responsible for obtaining the consent of such third parties for the processing of such Personal Information as Customer Data hereunder. Customer represents and warrants to Vendor that it shall obtain such consent from such third parties prior to the capture of such Personal Information via Customer’s use of the Services.

3. Liability.

To the extent permitted under applicable law, and notwithstanding anything else in the Agreement, the total liability of either Party towards the other Party under or in connection with this DPA shall not exceed the aggregate sum of all amounts paid by Customer to Vendor in the twelve (12) months immediately prior to the action or event forming the basis for such claim.  

4. Indemnification.

Each Party (the “Indemnifying Party”) agrees to indemnify, keep indemnified, defend and hold harmless the other Party (the “Indemnified Party”), at its own expense, against all costs, claims, damages or expenses incurred by the Indemnified Party, or for which the Indemnified Party may become liable due to any failure by the Indemnifying Party or its employees, Subprocessors, or agents to comply with any of its obligations under this DPA.

5. Changes.

5.1 Vendor may modify the terms of this DPA if, as reasonably determined by Vendor, such modification is (i) reasonably necessary to comply with Applicable Data Protection Laws or any other law, regulation, court order or guidance issued by a governmental regulator or agency; and (ii) does not: (a) result in a degradation of the overall security of the Services, (b) expand the scope of, or remove any restrictions on, Vendor’ processing of Customer Data, and (c) otherwise have a material adverse impact on Customer’s rights under this DPA.

5.2 Any other modification to this DPA shall require the signed written consent of both Parties.

5.3 In the event of any modification pursuant to Section 5.1, Vendor shall notify Customer of such modification by email at least 30 days (or such shorter period as may be required to comply with Applicable Data Protection Laws or any other law, regulation, court order or guidance issued by a governmental regulator or agency) before the change will take effect.

6. Severability.

Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

ANNEX 1

This Annex 1 includes certain details of the Processing of Company Data as required by Article 28(3) GDPR.

  • Nature, purpose and subject-matter of Processing: to provide the Services.
  • Duration of Processing: as long as necessary to provide the Services.
  • Type of Customer Data: Personal Information of (i) Customer, if Customer is an individual, (ii) Customer’s personnel that are input into the Services for the purpose of granting such personnel administrative access to the Services (“Authorized Users”), (iii) Customer’s workforce (“Employees”) that are input into the Services for the purposes of providing the Services and (iv) third parties whose data is captured through Customer’s use of the Services as described in Section 2.7 of the DPA (“Covered Third Parties”).
  • Categories of Data Subjects: Individual users, Employees, Authorized Users and Covered Third Parties.
  • Special Categories of Customer Data: The following special categories of Customer Data may be collected from Customers, Employees and Third Parties:
  • such information of Covered Third Parties that may be captured via Customer’s use of the Services.


ANNEX 2

Standard Contractual Clauses

As used herein, “data exporter” means Customer (as defined the in the Master Software and Services Agreement or other principal agreement between the parties that references the DPA to which this Annex 2 is appended), and “data importer” means Tango Technology, Inc., a Delaware corporation (each, a “party” and, together, the “parties”).

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses. As such, the parties have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in the DPA.

Clause 1

Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data”;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.


Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex 1 to the DPA which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in the DPA;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, 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;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in the DPA before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

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

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) 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;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract 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.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(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.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.



Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).



Clause 9

Governing Law

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



Clause 10

Variation of the contract

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

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to 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 subprocessor's obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.