The Services are for dealers and manufacturers and the authorised employees, representatives and agents of dealers and manufacturers as well as for end users and customers including those who interact with any of the foregoing persons by email, text or chat communications in the course of using the Services.
The Services may include some of (but not be limited to) the following:
Web-based first responder tool for triaging incoming internet leads;
Email response templates, and the ability to Attach/Embed corporate and/or dealer ‘clippings’;
Access to web-based service via desktop/laptop PC, with the capability for mobile access via smartphone;
A module which provides detailed, ‘dashboard’ style response metrics;
The ability to provide an after-hours auto response;
Chat software for digitally engaging internet leads who request this method of communication; and
Real-time two-way conversation between an online shopper and an online dealership.
ARTICLE ONE – LICENSE
1.04 Passwords. To use certain features of the Services, you may also need a username and password which you will receive through the Services registration process. You are responsible for maintaining the confidentiality of the password and account. You agree to notify RAPID RTC immediately of any unauthorised use of your password or account or any other breach of security, and to ensure that you exit from your account at the end of each session. RAPID RTC will not be liable for any loss or damage arising from RAPID RTC’s failure or your failure to protect your password or account information. Furthermore, you may be liable for any and all damages suffered by RAPID RTC relating to your failure to protect your password including but not limited to, business loss due to a competitor of RAPID RTC accessing the Services.
1.05 Limited Licenses. RAPID RTC grants the User no other license or grant, whatsoever, by estoppel, implication or otherwise, except for licenses and rights expressly granted in this Article One.
ARTICLE TWO – USE OF SERVICES AND ACCESS TO CONFIDENTIAL INFORMATION
2.02 Use of Services for Intended Purpose Only. You shall use the Services and Content for its intended purpose only. You will ensure that the Services and Content is not copied in whole or in part for any purpose or sold, rented or loaned to anyone who is not a User. You shall take all reasonable steps to prohibit the reverse engineering, disassembly, or modification of the RAPID RTC Services or Content and its parts by Users, third parties, or others, and agree to be held liable for any damages suffered by RAPID RTC where the act or omission of you has permitted the reverse engineering, disassembly, or modification of the RAPID RTC Services and Content or its parts by you, third parties, or others. You shall not attempt to discover the code or structural framework of the RAPID RTC Services or Content, or create similar or derivative works based on the RAPID RTC Services or Content.
2.03 Submissions. Notwithstanding the foregoing or anything to the contrary otherwise contained herein, you acknowledge that you may send email (post email messages), engage in digital chat (post chat messages), send SMS messages (post text messaged), engage in audio conversations (make phone calls), transmission of video, post content to interact with other users and to upload files, documents or other materials (a “Submission”). It is a condition of using any of the features of the Services which allow the Licensee to interact, transmit, post, upload or make a Submission that you observe the rules of etiquette and that in no event shall you: (i) restrict or inhibit any other user from using and enjoying the Services, interfere or attempt to interfere with the proper workings of the Services or do anything which in the sole discretion of RAPID RTC imposes an unreasonable or disproportionately large load on the infrastructure by which the Services are accessed; (ii) post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any Submission constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any statute, law or regulation; (iii) post or transmit any Submission, including, without limitation, articles, images, stories, software or other material, which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark, or other proprietary rights herein, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder; (iv) post or transmit any Submission that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, could be harmful to minors, harasses or advocates harassment of another person, provides material that exploits people under the age of 18 in a sexual or violent manner or provides instructional information about illegal activities; (v) post or submit any Submission which solicits passwords or personal identifying information for commercial or unlawful purposes from other users; (vi) post or transmit any Submission which contains a virus or other harmful component, or provides or creates computer viruses; (vii) post or transmit junk mail, chain letters, unsolicited mass mailing or spam; or (viii) use the Services for posting, uploading or transmitting any Submission which involve contests, sweepstakes, barter, advertising, and/or pyramid schemes. You acknowledge and agree that you are entirely responsible for all Submissions and the content thereof that you upload, post, or otherwise transmit using the Services. Further, you acknowledge that you may be exposed to Content that you find offensive, indecent or objectionable notwithstanding the foregoing. Under no circumstances shall RAPID RTC be responsible or liable for the content of the Submissions or for any loss or damage of any kind incurred as a result thereof.
Further, communications or Submissions among Users by making use of the Services, including, without limitation, payments, delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Users. RAPID RTC is not responsible or liable for any loss or damage of any kind incurred as a result of any such dealings.
Finally, and notwithstanding anything to the contrary otherwise contained herein, by posting or uploading a Submission through the Services, you grant RAPID RTC a royalty-free perpetual, non-exclusive, irrevocable, unrestricted, worldwide license to: (i) use, reproduce, store, adapt, translate, modify, make derivative works from, transmit, distribute, publicly perform or display such Submission for any purpose; and (ii) to sublicense to third parties the unrestricted right to exercise any of the foregoing rights. In addition to the grant of the above license, you hereby (i) agree to waive all moral rights in any Submission in favour of RAPID RTC; (ii) consent to your personal information, including without limitation, your name appearing as the contributor of any Submission, where applicable, and to the disclosure and/ or display of such information and any other information which appears in or is associated with the Submission (iii) acknowledge and agree that RAPID RTC is not responsible for any loss, damage, or corruption that may occur to any Submission; and (iv) acknowledge and agree that any Submission the Licensee provides using the Services will be considered non-confidential.
2.05 Industry Analysis. RAPID RTC reserves the non-expiring right to use the textual and numerical statistical portion of all data in RAPID RTC Services and Content at any time to conduct analysis for industry trends as long as the data is not singularly isolated and labeled as the User’s data. In the event that the User’s data is identified as a contributing statistical source, a minimum of two additional sources of data will be combined in the analysis so the User’s data remains unknown.
ARTICLE THREE – PROPERTY RIGHTS
3.01 Ownership. You agree that ownership of the Services and Content including all copyrights, patent rights, trade-marks, trade secrets or other intellectual property rights in them shall be and remain the property of RAPID RTC and are protected under English and foreign intellectual property or other laws. You shall abide by any and all trademark and copyright notices, patent protections, information and restrictions on or contained in any of the content accessed through the Services. ANY USE, REPRODUCTION, ALTERATION, MODIFICATION, PUBLIC PERFORMANCE OR DISPLAY, TRANSMITION, UPLOADING OR POSTING ONTO THE INTERNET, TRANSMISSION, REDISTRIBUTION OR OTHER EXPLOITATION OF THE SERVICES OR OF ANY CONTENT, WHETHER IN WHOLE OR IN PART, OTHER THAN EXPRESSLY SET OUT HEREIN, IS PROHIBITED WITHOUT THE EXPRESS WRITTEN PERMISSION OF RAPID RTC PROVIDED IN ADVANCE.
(i) use, reproduce, modify, adapt, translate, upload, download or transmit any aspect of the Services or Content in whole or in part to any third party without first obtaining consent of RAPID RTC to be evidenced by an executed agreement in writing;
(ii) sell, lend, pledge, rent, lease, license, transfer, convey or otherwise provide access to the Content or Services to any third party without first obtaining consent of RAPID RTC to be evidenced by an executed agreement in writing;
(iii) alter, remove or cover any trademarks, proprietary or confidential notices included in the Content or Services; and/or
(iv) decompile, disassemble, decrypt, extract or reverse engineer the Content or Services, or assist or permit others in doing so.
Nothing contained in the Content or Services shall be construed as granting you any right, title, interest or other license in, including, but not limited to, any intellectual property rights in any Content or Services, including software that is embedded or integrated into the Services.
3.02 Third-party Trademarks. Names, words, titles, phrases, logos, designs, graphics, icons and trademarks displayed on the Services may constitute registered or unregistered trademarks of third parties. While certain trademarks of third parties may be used by RAPID RTC under license, such use should not be taken to imply any relationship of license between RAPID RTC and the owner of said trademark or to imply that RAPID RTC endorses the wares, services or business of the owner of said trademark.
ARTICLE FOUR – REPRESENTATIONS, WARRANTIES, DISCLAIMERS AND LIABILITY
4.01 Limited Warranty. RAPID RTC does not warrant that the Services will be free from defects, viruses or other functional deficiencies or harmful components, that the operation of the Services will be uninterrupted or error free, that any defects or errors in the Services will be corrected, or that communications to or from the Services will be secure and not intercepted or incorrectly forwarded or distributed. While RAPID RTC will take reasonable measures to ensure that User data is stored safely and backed up, RAPID RTC is not responsible for lost or corrupted data files. BY USING THESE SERVICES YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES AND THE CONTENT IS ENTIRELY AT YOUR OWN RISK.
The Services may contain links to third-party websites. Such links are provided solely as a convenience to you and not as an endorsement by RAPID RTC of the contents of such third-party websites. Further, RAPID RTC is NOT responsible for the content of any third-party websites including, without limitation, (i) any representation or warranty regarding the legality, accuracy, reliability, completeness, timeliness or suitability of any content on any third-party websites; (ii) any representation or warranty regarding the merchantability or fitness for a particular purpose of any material, content, software, goods or services located at or made available through such third-party websites; or (iii) any representation or warranty that the operation of the third-party websites will be uninterrupted or error free, that defects or errors in such third-party websites will be corrected or that such third-party websites will be free from viruses or other harmful components.
4.02 Internet and Equipment. Since the User’s computer equipment and the general reliability and performance of the Internet is outside the control of RAPID RTC, RAPID RTC does not warrant User performance will achieve expected or implied levels.
4.03 Security. The information sent or received over the Internet, including, without limitation, email, digital chat, the posting of content and any other Submission is generally unsecure and RAPID RTC does not make any representation or warranty concerning the security of any communication to or from the Services or any representation or warranty regarding the interception by third parties of personal or other information. RAPID RTC does not warrant that communications or Submissions to or from a Website or using the Services will be secure, free from interception or correctly forwarded or distributed.
To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Services or any Content made available through the Services, whether express or implied.
We will not be liable to any user for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
use of, or inability to use, the Services;
use of or reliance on any Content made available through the Services;
loss of profits, sales, business, or revenue;
loss of anticipated savings;
loss of business opportunity, goodwill or reputation; or;
any indirect or consequential loss or damage
We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Services or to your downloading of any Content.
4.06 Indemnity for 3rd Party Leads. You hereby agree that if any leads or information collected by third parties are input into the Services or the Website you will indemnify and hold harmless RAPID RTC from any claims, loss or damages related to such leads or information.
ARTICLE FIVE – TERM AND TERMINATION
5.02 Duties in the Event of Termination. In the case of termination, and unless otherwise agreed to in writing, the User will immediately stop using the RAPID RTC Services and Content. RAPID RTC will terminate access to the Services.
ARTICLE SIX – MAINTENANCE
6.01 Maintenance Outages. RAPID RTC reserves the right, as reasonably necessary or convenient, either for RAPID RTC’s own purposes or to improve the quality of any of the components comprising the Services and Content which are the subject of this license, to change rules of operation for the technologies therein comprised, system interfaces, utilities, operating and other systems and software, and to implement enhancements, amendments or updates thereto. To minimize the effect of service outages on the User, RAPID RTC will schedule times during which the Services will be unavailable to Users due to RAPID RTC maintenance.
ARTICLE SEVEN – MISCELLANEOUS
7.05 Modification and Waiver. No modification to the Agreement, nor any waiver of any rights, will be effective unless consented to in writing by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
7.07 Notice Provision. Any such notices contemplated herein shall be delivered electronically to the email address provided upon order or registration. Should a User wish to change his or its email address on an email account the User is responsible for notifying RAPID RTC. Otherwise, RAPID RTC’s obligation to notify a User is to send the notification to the email account on file, even if RAPID RTC should have notice that the email account is inactive or closed. In this regard, any notice given by RAPID RTC to a subject dealer or manufacturer shall be in turn be provided by such dealer or manufacturer to the Representatives of such dealer or manufacturer. Accordingly, notice given by RAPID RTC to a subject dealer or manufacturer shall be deemed notice to such person’s Representatives.
Data Processor Agreement
ARTICLE ONE – INTRODUCTION
1.01 This agreement regarding processing of personal data (the “Data Processor Agreement”) RAPID RTC Ireland Limited, a a private limited company incorporated and registered in the Republic of Ireland with company number 665227 and with its offices at Block B, The Cresent Building, Northwood, Santry, Dublin 9, Dublin, D09 C6X8 (the “Data Processor”) processing of personal data on behalf of the customer (the “Data Controller”)(together, the “Parties”) and is attached as appendix A to the Order Form (the “Main Agreement”), in which the parties have agreed the terms for the Data Processor’s delivery of services to the Data Controller (the “Services”).
ARTICLE TWO – LEGISLATION
2.01 The Data Processor Agreement shall ensure that the Parties comply with the applicable data protection and privacy legislation (the “Applicable Law”), including the Regulation (EU) 2016/679 as amended by any legislation arising out of the withdrawal of the UK from the European Union (“GDPR”) and any legislation and/or regulation implementing or made pursuant to it, or which amends, replaces, re-enacts or consolidates it.
ARTICLE THREE – PROCESSING OF PERSONAL DATA
3.01 “Personal data” include any information relating to an identified of identifiable natural person as defined in GDPR, article 4 (1) (1) (the “Personal Data”). The categories and types of Personal Data processed by the Data Processor on behalf of the Data Controller and the nature and purpose of the processing are listed in sub-appendix A. The subject-matter of the data processing is the performance of the Services and the obligations and rights of the Data Controller are set out in this Data Processor Agreement. The Data Processor only performs processing activities that are necessary and relevant to perform the Services. The parties shall update sub-appendix A whenever changes occur that necessitates an update.
3.02 The Data Processor processes personal data about the Data Controller’s customers (“Customers”) and the Data Controller’s employees (“End-users”) in connection with the Data Processor’s sale, marketing and product development.
ARTICLE FOUR – INSTRUCTION
4.01 The Data Processor may only act and process the Personal Data in accordance with the Data Controller’s documented instructions, which are set out in the Main Agreement. If the Data Processor is required to process the Personal Data for any other purpose by applicable laws to which the Data Processor is subject, the Data Processor will inform Data Controller of this requirement first, unless such law(s) prohibit this on important grounds of public interest.
4.02 The Data Controller guarantees that the Personal Data transferred to the Data Processor is processed by the Data Controller in accordance with the Applicable Law, including the legislative requirements related to the lawfulness of processing and that the Personal Data can be shared with the Data Processor for the purposes envisaged by this Data Processing Agreement.
4.03 The Data Processor shall notify the Data Controller immediately if, in the Data Processor’s reasonable opinion, an instruction for the processing of Personal Data given by the Data Controller infringes Applicable Law, it being acknowledged that the Data Processor shall not be obliged to undertake additional work or screening to determine if the Data Controller’s instructions are compliant.
ARTICLE FIVE – THE DATA PROCESSOR’S OBLIGATIONS
5.01 The Data Processor shall treat all the Personal Data as confidential information. The Personal Data may not be copied, transferred or otherwise processed in conflict with the Main Agreement.
5.02 The Data Processor shall implement the appropriate technical and organization measures as set out in this Data Processing Agreement and in the Applicable Law, including accordance with GDPR, article 32.
5.03 The Data Processor shall also ensure that the Data Processor’s employees processing the Personal Data only processes the Personal Data in accordance with the Main Agreement and that they have committed themselves to confidentiality in respect of such Personal Data.
5.04 Rights of the Data Subjects
(i) The Data Controller will have the ability to access, correct and delete Personal Data without assistance from the Data Processor. The Data Controller will be responsible for responding to and ensuring compliance with and access, connection or deletion request the Data Controller receives.
(ii) If the Data Controller receives a request from a data subject for the exercise of the data subject’s rights under the Applicable Law and the correct and legitimate reply to such a request necessitates the Data Processor’s assistance, if the Data Controller does not have the ability to access, connect or delete the Personal Data itself, the Data Processor shall assist the Data Controller by providing the necessary information and documentation. The Data Processor shall be given reasonable time to assist the Data Controller with such requests in accordance with the Applicable Law [and this assistance shall be provided at the reasonable cost of the Data Controller].
(iii) If the Data Processor receives a request from a data subject for the exercise of the data subject’s rights under the Applicable Law and such request is related to the Personal Data of the Data Controller, the Data Processor must immediately forward the request to the Data Controller and must refrain from responding to the person directly.
5.05 The Data Processor shall promptly give notice to the Data Controller if a breach of the data security occurs which is likely to lead to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, personal data transmitted, stored or otherwise processed regarding the Personal Data processed on behalf of the Data Controller (a “Personal Data Breach”).
5.06 Any transfer of the Personal Data to any third countries or international organizations shall only be done to the extent such transfer is permitted and done in accordance with the Applicable Law. If the Data Controller is based in the European Economic Area and transfers Personal Data to the Data Processor in the United Kingdom after the United Kingdom leaves the European Union, then the Standard Contractual Clauses appended at Sub-Appendix C which form part of this Data Processing Agreement shall apply provided the conditions of Section 1 (Effective date and duration) of Sub-Appendix C are met. The Data Controller acknowledges and agrees that specific security measures outlined in Appendix 2 to the Standard Contractual Clauses may be subject to change from time to time provided the overall standard of security does not fall below that specified in Appendix 2 as at the date of this Data Processing Agreement.
5.07 The Data Processor shall assist the Data Controller, always taking into account the nature of the processing in ensuring compliance with the obligations pursuant to Articles 33 to 36 of the GDPR, taking into account the information available to the Data Processor. The assistance under 5.07 shall be at the Data Controller’s expense.
5.08 The Data Processor shall make available to the Data Controller all information which the Data Controller reasonably requests to allow the Data Controller to demonstrate that the obligations set out in Article 28 of the GDPR relating to the appointment of processors have been met and shall, not more than once per calendar year, on not less than  days prior written notice, allow the Data Controller and its respective auditors or authorised agents to conduct audits or inspections during the term of the Data Processor Agreement provided that such auditor is not a competitor of the Data Processor and agrees to enter into a Non-Disclosure Agreement with the Data Processor in a form agreed by the parties. If the Data Controller’s request for additional information relates to a Sub-Processor (as defined below), or information held by a Sub-Processor which Data Processor cannot provide to Data Controller itself, Data Processor will promptly submit a request for additional information in writing to the relevant Sub-Processor. Data Controller acknowledges that access to a Sub-Processors facilities or to information about a Sub-Processors previous independent audit reports is subject to agreement from the relevant Sub-Processor, and the Data Processor cannot guarantee access to that Sub-Processor’s facilities or audit information at any particular time, or at all.
ARTICLE SIX – SUB-PROCESSORS
6.01 The Data Processor is given general authorization to engage third-parties to process the Personal Data (“Sub-Processors”) without obtaining any further written, specific authorization from the Data Controller provided the Data Processor complies with 6.02, 6.03 and 6.04 below.
6.02 A list of Sub-processors approved by the Data Controller as at the date of this Data Processor Agreement is available at Sub-Appendix B. Data Processor can at any time appoint a new Sub-processor provided that Data Controller is given  days prior notice and Data Controller does not object to such changes within that timeframe. If Data Controller has a reasonable basis to object to Data Processor’s use of a new Sub-processor, and that objection is not unreasonable, Data Processor will use reasonable efforts to make available to Data Controller a change in the Services or recommend a commercially reasonable change to Data Controller’s configuration or use of the Services to avoid processing Personal Data by the objected-to new Sub-processor. If the Data Processor is unable to make available such change within a reasonable period of time, which shall not exceed (60) days, Data Controller may terminate the Services which cannot be provided by Data Processor without use of the objected -to new Sub-processor.
6.03 The Data Processor shall conclude a written sub-processor agreement with any Sub-Processors. Such an agreement shall at minimum provide data protection obligations no less protective than the ones applicable to the Data Processor, including the obligations under this Data Processor Agreement.
6.04 The Data Processor is accountable to the Data Controller for any Sub-Processor in the same way as for its own actions and omissions.
ARTICLE SEVEN – BREACH AND LIABILITY
7.01 The Data Processor’s liability under this Data Processor Agreement (including the Standard Contractual Clauses) is limited to the payments made under the Main Agreement in the 12 months before the occurrence of the circumstances leading to a breach of contract. If the Data Processor Agreement has not been in force for 12 months before the occurrence of the circumstances leading to a breach of contract, the limited liability amount shall be calculated proportionately based on the actual performed payments.
7.02 The limitation of liability does not apply to the following losses as a consequence of the Data Processor’s gross negligence or willful misconduct.
ARTICLE EIGHT – DURATION
8.01 The Data Processor Agreement shall remain in force until the Main Agreement is terminated.
ARTICLE NINE – TERMINATION
9.01 The Data Processor’s authorization to process Personal Data on behalf of the Data Controller shall be annulled at the termination of this Data Processor Agreement.
9.02 The Data Processor may continue to process the Personal Data for up to three months after the termination of the Data Processor Agreement to the extent it is reasonably necessary or as required under the Applicable Law. In the same period, the Data Processor is entitled to include the Personal Data in the Data Processor’s backup. The Data Processor’s processing of the Data Controller’s Personal Data in the three months after the termination of this Data Processor Agreement shall be considered as being in accordance with the Main Agreement. Following this three month period, upon the Data Controller’s request, the Data Processor shall delete or return the Personal Data to the Data Controller unless applicable laws require storage of such Personal Data.
ARTICLE ONE – PERSONAL DATA
1.01 The Data Processor processes the following types of Personal Data in connection with its delivery of the Services:
(i)Contact information and employment position on relevant End-users.
(ii) Contract information on relevant Customers.
(iii) Information for vehicle credit applications, which may include national insurance number, salary information, current vehicle registration.
ARTICLE TWO – CATAGORIES OF DATA SUBJECTS
2.01 The Data Processor processes Personal Data about the following categories of data subjects on behalf of the Data Controller:
ARTICLE THREE – NATURE AND PURPOSE OF PROCESSING OPERATIONS
The Personal Data transferred will be processed for the provision of web services, software and platform used for marketing lead generation and management.
ARTICLE ONE – APPROVED SUB-PROCESSORS
1.01 The following Sub-Processors shall be considered approved by the data Controller at the time of entering into this Data Processor Agreement:
(i) DMT Development Systems Group Inc., 500 – One Research Road, Winnipeg, MB R3T 6E3, Canada.
The Standard Contractual Clauses and supplemental clarifying commercial terms set out below are entered into between:
|Data Processor (as defined in Appendix A)||Data Controller (as defined in Appendix A)
1.Effective date and duration
a. These Standard Contractual Clauses and associated clarifying commercial terms will be effective from whichever is the later of:
i. the date on which the United Kingdom ceases to be a member state of the European Union; or
ii. the date on which the United Kingdom ceases to be treated by the European Union as though it were a member state in accordance with the terms of any withdrawal agreement which is in force between the United Kingdom and the European Union.
b. These Standard Contractual Clauses shall cease to apply in the event that the European Commission issues an adequacy decision in relation to the United Kingdom under Article 45 of the General Data Protection Regulation.
2. Clarifying commercial clauses
a. The parties agree that the Standard Contractual Clauses shall be clarified as set out below. These clarifications shall not apply if and to the extent that they would invalidate the Standard Contractual Clauses.
c. For the purposes of clauses 5(h) and 11 of the Standard Contractual Clauses the you consent to Data Processor subcontracting processing operations in accordance with the provisions set out at article 6 of the Data Processor Agreement.
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
Tel.:…N/A…………………; fax: …N/A…….…………..; e-mail…N/A…….……………..:
Other information needed to identify the organisation N/A (the “data exporter”)
Name of the data importing organisation: as set out in the Product Order Form
Tel.:…N/A…………………; fax: …N/A…….…………..; e-mail…N/A…….……………..:
Other information needed to identify the organisation: N/A (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.
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.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
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.
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).
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.
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.
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
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.
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.
On behalf of the data exporter:
Name (written out in full):
Position:see Customer details on cover sheet and execution of Main Agreement
Other information necessary in order for the contract to be binding (if any): N/A
On behalf of the data importer:
Name (written out in full):
Position:see Supplier details on cover sheet and execution of Main Agreement
Other information necessary in order for the contract to be binding (if any): N/A
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
The data exporter is (please specify briefly your activities relevant to the transfer):is a car dealer or manufacturer
The data importer is (please specify briefly activities relevant to the transfer):a provider of web services, software and platform used for marketing lead generation and management.
The personal data transferred concern the following categories of data subjects (please specify): Customer’s Customers and Customer’s End-Users.
Categories of data
The personal data transferred concern the following categories of data (please specify): Contact information and employment position on Customer’s relevant End-users and Contract information on Customer’s relevant Customers.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify): None
The personal data transferred will be subject to the following basic processing activities (please specify):personal data will be processed for the provision of the marketing lead generation and management services.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
- Measures shall include:
- Access control system
- ID reader, magnetic card, chip card
- (Issue of) keys
- Door locking (electric door openers etc.)
- Surveillance facilities
- Alarm system, video/CCTV monitor
- Logging of facility exits/entries
2. Access control to systems
Measures must be taken to prevent unauthorized access to IT systems. These must include the following technical and organizational measures for user identification and authentication:
- Password procedures (incl. special characters, minimum length, forced change of password)
- No access for guest users or anonymous accounts
- Central management of system access
- Access to IT systems subject to approval from HR management and IT system administrators
3. Access control to data
Measures must be taken to prevent authorized users from accessing data beyond their authorized access rights and prevent the unauthorised [input, reading, copying, removal] modification or disclosure of data. These measures shall include:
- Differentiated access rights
- Access rights defined according to duties
- Automated log of user access via IT systems
- Measures to prevent the use of automated data-processing systems by unauthorised persons using data communication equipment
4. Disclosure control
Measures must be taken to prevent the unauthorized access, alteration or removal of data during transfer, and to ensure that all transfers are secure and are logged. These measures shall include:
- Encryption using a VPN for remote access, transport and communication of data.
- Prohibition of portable media
- Creating an audit trail of all data transfers
5. Job control
Measures should be put in place to ensure that data is processed strictly in compliance with the data importer’s instructions. These measures must include:
- Unambiguous wording of contractual instructions
- Monitoring of contract performance
6. Availability control
Measures should be put in place to ensure that data are protected against accidental destruction or loss.
These measures must include:
- Ensuring that installed systems may, in the case of interruption, be restored
- Ensure systems are functioning, and that faults are reported
- Ensure stored personal data cannot be corrupted by means of a malfunctioning of the system
- Uninterruptible power supply (UPS)
- Business Continuity procedures
- Remote storage
- Anti-virus/firewall systems
7. Segregation control
Measures should be put in place to allow data collected for different purposes to be processed separately.
These should include:
- Restriction of access to data stored for different purposes according to staff duties.
- Segregation of business IT systems
- Segregation of IT testing and production environments