LEGAL

Upflowy Data Processing Agreement

Last updated 7 September 2021


1. Background

 

1.1 This Data Processing Agreement (“DPA”) supplements our Terms of Use and Privacy Policy (the “Agreement”) with clients (“client” or “you”) insofar as they relate to processing of data subject to the European Union’s General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”).  To the extent this DPA conflicts with our Terms of Service or our Privacy Policy, this DPA will apply.

1.2 Upflowy Pty Ltd (ABN 43 641 387 199) (“Upflowy” “we,” or “us”) acts as a “Processor” under the GDPR.  As one of our clients, you control the means and purposes for the processing of the data you gather using our services (the “Services”), and thus, you are a Controller under the GDPR.  Those items the GDPR requires of Processors are our responsibility, and those items required of Controllers are your responsibility.  Under the CCPA, we qualify as a service provider, and we agree to comply with the requirements of service providers as described in the CCPA and as specifically described in this DPA.

1.3 The term of this DPA shall continue until the latter of the following: the termination of the Agreement, or the date at which the Data Processor ceases to process personal data for the Data Controller.

1.4. We update these terms from time to time. If you have an active Upflowy subscription, we will let you know when we do via email.

 

 2. Scope

2.1 Nature and Purpose of Processing.
We will Process Personal Data as necessary to provide the Services pursuant to the Agreement.

2.2 Categories of Data subjects
You may submit Personal Data in the course of using the Service,  the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to your Contacts and other end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.

2.3 Processing operations
Personal Data will be Processed in accordance with the Agreement (including this DPA)    and may be subject to Storage and other Processing necessary to provide, maintain and improve the Services provided to you; and/or disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.

3. Customer Responsibilities

3.1 Compliance with Laws.
Within the scope of the Agreement and in your use of the services, you will be responsible for complying with all requirements that apply to you under applicable Data Protection Laws with respect to your  Processing of Personal Data and the Instructions you give to us.

3.2 You acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations; (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing; and (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws. You will inform us without undue delay if you are not able to comply with your responsibilities under this ‘Compliance with Laws’ section or applicable Data Protection Laws.

3.3 Controller Instructions.
The parties agree that the Agreement (including this DPA), together with your use of the Service constitutes your complete and final Instructions to us in relation to the Processing of Personal Data.

3.4 Security.
You are responsible for independently determining whether the data security provided for in the Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Service, including protecting the security of Personal Data in transit to and from the Service (including to securely backup or encrypt any such Personal Data).

4. Upflowy Obligations

4.1 Compliance with Instructions.
We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.

4.2 Conflict of Laws.
If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Services  until such time as you issue new lawful Instructions with regard to the Processing.

4.3 Security.
We will implement and maintain appropriate Security Measures as described in Annex 1 to this DPA. We may modify or update the Security Measures at our discretion.

4.4 Confidentiality. 
We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.

4.5 Personal Data Breaches.
We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.

4.6 Deletion or Return of Personal Data. 
We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Service. This term shall apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems and delete in accordance with our deletion practices. You may request the deletion of your Upflowy account after expiration or termination of your subscription by sending a request to us.

5. Sub-Processors

5.1 You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors and third parties listed in Annex 2 to this DPA. We will notify you if we add or remove Sub- Processors to Annex 2 prior to any such changes.

5.2 Where we engage Sub-Processors, we will impose data protection terms on the Sub- Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

6. European Data

This clause only applies only with respect to European Data.

6.1 Roles of the Parties
When Processing European Data in accordance with your Instructions, the parties acknowledge and agree that you are the Controller of European Data, and we are the Processor.

6.2 Data Protection Impact Assessments and Consultation with Supervisory Authorities
To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws

6.3 To the extent that Upflowy is a recipient of Customer Data protected by EU Data Protection Laws ("EU Data") in a country outside of Europe that is not recognized as providing an adequate level of protection for personal data (as described in applicable EU Data Protection Law), Upflowy agrees to abide by and process EU Data in compliance with the SCCs in the form set out in Annex 3 For the purposes of the descriptions in the SCCs, Upflowy agrees that it is the "data importer" and Customer is the "data exporter" (notwithstanding that Customer may itself be an entity located outside Europe).

6.4 The parties agree that for the purposes of the SCCs (i) Upflowy. will be the "data importer" and Customer will be the "data exporter" and (ii) if and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the SCC will prevail to the extent of such conflict.

7. California Personal Information

This clause only applies with respect to California Personal Information.

7.1 Roles of the Parties
When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business, and we are a Service Provider for the purposes of the CCPA.

7.2 Responsibilities 
The parties agree that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Services under the Agreement (the "Business Purpose") or as otherwise permitted by the CCPA.

8. General Provisions

8.1 Amendments
Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA.

8.2 Severability
If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.

8.3 Limitation of Liability 
Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limitation of Liability' section of the Terms of Use and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA).  In no event shall either party's liability be limited with respect to any individual's data protection rights under this DPA (including the SCCs) or otherwise.

8.4 Governing Law
This DPA will be governed by and construed in accordance with the laws of New South Wales, Australia unless required otherwise by Data Protection Laws.

9. Parties to this DPA

9.1 Permitted Affiliates 
By signing the Agreement, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of your Permitted Affiliates, thereby establishing a separate DPA between us and each such Permitted Affiliate subject to the Agreement and the ‘General Provisions’ and ‘Parties to this DPA’ sections of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the terms “Customer”, “you” and “your” will include you and such Permitted Affiliates.

9.2 Authorization
The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.

9.3 Remedies
Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against us directly by itself, the parties agree that (i) solely the Customer entity that is the contracting party to the Agreement will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all communication with us under the DPA and will be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates.

10. Definitions

The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.

“California Personal Information” means Personal Data that is subject to the protection of the CCPA.

"CCPA" means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).

"Consumer", "Business", "Sell" and "Service Provider" will have the meanings given to them in the CCPA.

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated or replaced from time to time.

“Data Subject” means the individual to whom Personal Data relates.

"Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.

“European Data” means Personal Data that is subject to the protection of European Data Protection Laws.

"European Data Protection Laws" means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("GDPR"); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.

“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

"Permitted Affiliates" means any of your Affiliates that (i) are permitted to use the Services  pursuant to the Agreement but have not signed their own separate agreement with us and are not a “Customer” as defined under the Agreement,(ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws.

“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services .

"Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

“Standard Contractual Clauses” means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out at Annex 3; as may be amended, superseded or replaced.

“Subprocessor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Services  under the Agreement. Subprocessors may include third parties or our Affiliates but will exclude any Upflowy employee or consultant.

Annex 1 - Security Measures

This Annex forms part of the DPA.

We currently observe the Security Measures described in this Annex 1. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the  Upflowy Terms of Use .

1. Technical and organizational measures baseline Physical Access Controls

Data Processor shall take reasonable measures to prevent physical access, such as secured buildings, to prevent unauthorized persons from gaining access to personal data.

2. System Access Controls

Data Processor shall take reasonable measures to prevent personal data from being used without authorization. These controls shall vary based on the nature of the processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes and/or logging of access on several levels.

3. Data Access Controls

Data Processor shall take reasonable measures to provide that personal data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to use a data processing system only have access to the personal data to which they have privilege of access; and, that personal data cannot be read, copied, modified or removed without authorization in the course of processing. The Data Processor shall take reasonable measures to implement an access policy under which access to its system environment, to personal data and other data by authorized personnel only.  

4. Transmission Controls

Data Processor shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of personal data by means of data transmission facilities is envisaged so personal data cannot be read, copied, modified or removed without authorization during electronic transmission or transport. 

5. Input Controls
Data Processor shall take reasonable measures to provide that it is possible to check and establish whether and by whom personal data has been entered into data processing systems, modified or removed. Data Processor shall take reasonable measures to ensure that (i) the personal data source is under the control of data exporter; and (ii) personal data integrated into Data Processor’s systems is managed by secured file transfer from the Data Processor and data subject.

Annex 2 - List of Sub-Processors

 

Entity Name Sub-processing activities Data Center Sub-Processor Location/s
Hubspot Marketing website United States
Google, Inc. Regional Data Processing United States
Google reCAPTCHA Form submission spam prevention United States
Firebase Authentication and core application storage (Firestore) United States
Google Cloud Platform Data Warehouse "Big Query" storing duplicates of Firestore for Business Intelligence, and Reporting features.  United States
Sendgrid Transactional email send from our SaaS platform United States
Sentry Logging, Monitoring, and Alerting system. United States
Segment Event tracking pipeline platform United States
Intercom User activity tracking enabling engagement and support Undisclosed
ChargeBee PCI DSS 3.2 compliant payment processing holding payments details. Undisclosed
Active Campaign Marketing website (waitlist) Undisclosed

 

Annex 3 

Standard Contractual Clauses (processors)

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.  These clauses are incorporated into the data processing agreement agreed by the parties, and signatures hereto are presumed.

Upflowy Pty Ltd (ABN 436 413 871 99) 

And 

The customer of Upflowy, as described in the Upflowy Terms of Use (the “data exporter”)

And 

(the data importer)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

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;

(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.

(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 Appendix 1 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 Appendix 2 to this contract;

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

(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, 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;

(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 Appendix 2 before processing the personal data transferred;

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

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

(ii) any accidental or 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, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of 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.

  1. 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.

  1. 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.  Notwithstanding the foregoing, certain of Your Personal Information is subject to the laws of various jurisdictions regarding archiving of employment-related data.  To comply with that broad array of laws, and to allow Company to facilitate the restarting of clients who may have terminated their agreement with Company, Company keeps the employment-related data for a period of seven years, unless a client makes a request to delete that data, in which case Company will delete the data within thirty (30) days after receipt of the request.

  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.

Signatures Presumed

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 the customer, as defined in the Upflowy Terms of Use (“Agreement”).

Data importer

The data importer is Upflowy Pty Ltd  

Data subjects

The personal data transferred concern the following categories of data subjects:

  • Ambassadors, influencers, athletes, employees, advocates, fans, and customers of the client, including people who publicly mention the client on social media

Categories of data

The personal data transferred include, but not limited to, the following categories of data:

  • First, Middle, and Last Name
  • Social handles and profiles
  • Contact Information (email, phone, physical home address)
  • Commissions Payable and Contractual Relationships among ambassadors and data exporter (if applicable)

Special categories of data (if appropriate)

The personal data transferred include, but not limited to, the following special categories of data:

  • Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.  The users of the Services may use the Services to interact and share information.  Therefore, neither data exporter nor data importer will control the types of information submitted.  

Processing operations

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

  • The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.

Signatures Presumed

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties.  The parties’ signature is presumed.

The technical and organizational measures to be implemented by data importer are described in Annex 1 the DPA entered into by the parties. 

Signatures Presumed

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