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Data Processing Agreement

Effective:  3rd Jan 2021

This Data Processing Agreement forms part of the LearnUpon Subscription Agreement (the “Principal Agreement”) entered into by and between LearnUpon and You and is incorporated by reference therein. The services or items provided under the Principal Agreement (“Services”) may include the processing of personal data on Your behalf. The terms “personal data”, “controller”, “processor”, “data subject”, “personal data breach” and “processing” shall have the same meaning as in the Protection Legislation (as defined below).

Where LearnUpon is engaged as a sub-processor for and on behalf of You where You are acting as a processor, this Data Processing Agreement shall be read as though any reference to controller means processor and any reference to processor means sub-processor.

Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy under or in connection with this Data Processing Agreement including the General Data Protection Regulation 2016/679 (“GDPR”) and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time.

Standard Contractual Clauses" means the European Commission's Standard Contractual Clauses for the transfer of personal data from the European Economic Area ("EEA") to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU and set out in Appendix 3.

1. The Parties shall at all times comply with applicable Data Protection Legislation and may take such actions as they, in their sole discretion, deem necessary to comply with Data Protection Legislation.

2. The Parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and LearnUpon is the data processor. Annex 1 sets out the scope, nature and purpose of processing by LearnUpon, the duration of the processing, the types of personal data and categories of data subject and the minimum security measures that LearnUpon shall adhere to when processing personal data on your behalf.

3. LearnUpon shall, as a data processor and in relation to personal data that it processes on behalf of You comply with its obligations set out in this clause 3: You shall comply with Your obligations as set out in this clause 3:

3.1. LearnUpon shall act only in accordance with this Data Processing Agreement, the Principal Agreement and with Your instructions in relation to the processing of personal data (including instructions in relation to the return or destruction of personal data). In the event that a legal requirement prevents LearnUpon from complying with such instructions or requires LearnUpon to disclose the personal data to a third party LearnUpon shall, unless such legal requirement prohibits it from doing so, inform You of the relevant legal requirement before carrying out the relevant processing activities;

3.2. LearnUpon shall take reasonable steps to ensure the reliability of staff having access to the personal data and that all staff to whom it discloses personal data are made aware that the personal data is confidential information of Yours and subject to this Agreement;

3.3. LearnUpon shall have and maintain technical and organisational measures appropriate to the risks that are presented by the processing, in accordance with Data Protection Legislation, and in particular the measures set out at Annex 2 of this Data Processing Addendum, to prevent unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. LearnUpon shall maintain such security measures for as long as it is processing the personal data on Your behalf;

3.4. LearnUpon shall, at Your expense, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR; 

3.5. LearnUpon shall, as soon as reasonably practicable, but in no event later than 72 hours upon becoming aware, notify You of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Your personal data (a "Security Breach");

3.6. LearnUpon shall promptly provide You with reasonable cooperation and assistance in respect of the Security Breach and all information in LearnUpon's possession concerning the Security Breach.

3.7. LearnUpon shall, at Your expense, provide reasonable assistance to You in ensuring compliance with Your obligations set out under Articles 32–36 of the GDPR to:

3.7.1. Ensure the security of processing;

3.7.2. Notify the relevant supervisory authority, and any data subject(s), where relevant, of any Security Breach;

3.7.3. Carry out any data protection impact assessments (each a "DPIA") of the impact of the processing on the protection of personal data; and

3.7.4. Consult the relevant supervisory authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by You to mitigate the risk.

3.8. LearnUpon shall, at Your choice, destroy or return all personal data to You at the end of the provision of services relating to processing and, within a reasonable amount of time, delete existing copies unless European Union law or a law of a Member State of the European Union requires the storage of the personal data;

3.9. LearnUpon shall make available to You, at Your expense, all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits. Such audits shall be at Your expense and may include inspections conducted by You or another auditor authorised by You. Such inspections and/or audits shall be agreed in advance with LearnUpon and carried out on reasonable notice, at reasonable intervals and during normal business hours of LearnUpon and upon production of appropriate identity evidencing authority. You undertake to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of LearnUpon’s business and/or damage or injury to LearnUpon’s equipment, premises, personnel;

3.10. You acknowledge and accept that the provision of the LearnUpon Services under the Principal Agreement may require the processing of personal data in countries outside the EEA or the UK from time to time. 

3.11. If, in the performance of this DPA and/or the Principal Agreement, LearnUpon transfers any personal data outside of the EEA or the UK or permits processing of any personal data by a sub-processor (which shall include without limitation any Affiliates of LearnUpon) located outside of the EEA, LearnUpon shall in advance of any such transfer ensure that a legal mechanism to achieve adequacy in respect of that processing before the non-EEA processing is in place, such as:

3.11.1. the requirement for LearnUpon to execute or procure that a third party execute Standard Contractual Clauses;

3.11.2. the existence of any other specifically approved safeguard for data transfers (as recognized under Data Protection Legislation) and/or a European Commission finding of adequacy.

3.12. LearnUpon uses sub-processors for the purposes of providing access to, ongoing support and development of the Platform. LearnUpon maintains a list of all the sub-processors it uses at the following URL: https://www.learnupon.com/subprocessors/, which may be updated from time to time upon thirty days’ notice to You provided by email. You provide your general consent to the use by LearnUpon of these sub-processors. If You have a reasonable objection to any new or replacement sub-processor, You shall notify LearnUpon of such objections in writing within ten (10) days of the notification and the Parties will seek to resolve the matter in good faith.  If LearnUpon is able to provide the Services to You in accordance with the Principal Agreement without using the sub-processor and decides in its discretion to do so, then You will have no further rights under this clause in respect of the proposed use of the sub-processor.  If LearnUpon requires to use the sub-processor and is unable to satisfy You as to the suitability of the sub-processor or the documentation and protections in place between LearnUpon and the sub-processor within sixty (60) days from Your notification of objections, You may within thirty (30) days of the end of the sixty (60) day period referred to above terminate the Principal Agreement or applicable Order Form only in relation to the Services to which the proposed new sub-processor's processing of personal data relates or would relate by providing written notice to LearnUpon having effect thirty (30) days after receipt by LearnUpon. LearnUpon may use a new or replacement sub-processor whilst the objection procedure in this clause is in process.  LearnUpon shall, where it engages a sub-processor for carrying out specific processing activities on behalf of the controller, use reasonable endeavours to ensure that the same data protection obligations as set out in this Data Processing Agreement shall be imposed on that other processor by way of contract or other legal act under European Union law or the laws of a Member State ("Relevant Terms"). LearnUpon shall procure the performance by such sub-processor of the Relevant Terms and shall be directly liable to You for any breach by such person of any of the Relevant Terms.

4. Consents. You warrant and represent that You have obtained and/or have in place, all necessary consents, approvals and/or valid legal basis for the lawful transfer of personal data to LearnUpon for the purposes of this Data Processing Agreement and the provision of services by LearnUpon.

5. Third Party Services. You may choose from time to time to use third party products or services in conjunction with the Services made available to You under the Principal Agreement (“Third Party Services”). If You elect to enable, access, or use such Third Party Services, Your access and use of such Third Party Services is governed solely by the terms and conditions and privacy policies of such Third Party Services, and LearnUpon does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation their content or the manner in which they handle personal data or any interaction between You and the provider of such Third Party Services.

6. Obligations under the Principal Agreement. Nothing in this Data Processing Agreement reduces Your obligations under the Principal Agreement in relation to the protection of personal data. In the event of any conflict or inconsistency between this Data Processing Agreement and any Standard Contractual Clauses between the Parties, the Standard Contractual Clauses shall prevail.

7. Order of precedence. Subject to clause 6 above, with regard to the subject matter of this Data Processing Agreement, in the event of inconsistencies between the provisions of this Data Processing Agreement and any other agreements between the Parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this Data Processing Agreement, the provisions of this Data Processing Agreement shall prevail.

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

9. Variation. The Parties may amend, replace or vary the terms of this Data Processing Agreement to reflect any changes in Data Protection Legislation or a new requirement under such law (including without limitation any change that may be required following Brexit to allow the transfer of personal data to be made (or continue to be made) without breaching Data Protection Legislation). “Brexit” means the UK ceasing to be a Member State of the European Union, regardless of which countries comprise the UK at such date.

10. Miscellaneous. Without prejudice to clause 9 (Governing Law) of the Standard Contractual Clauses, this Data Processing Agreement shall be governed by and construed in accordance with the laws of the country of territory stipulated for this purpose in the Principal Agreement and each of the parties agrees to submit to the Choice of jurisdiction as stipulated in the Principal Agreement in respect of any claim or matter arising under this Data Processing Agreement.

10.1. For the avoidance of doubt, each reference to the Data Processing Agreement in this Data Processing Agreement means this Data Processing Agreement including its Schedules.

Annex 1 – Processing of Personal Data

Nature and Purpose of Processing

LearnUpon will process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by You in Your use of the Services.

Duration of Processing

LearnUpon will process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Personal Data

Subject to the restrictions set forth in the Principal Agreement, You may submit Personal Data to LearnUpon, 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 the following categories of data subjects:

  • Authorized Users
  • Your employees
  • Your consultants
  • Your customers
  • Your contractors
  • Third Parties with which You conduct business.

Type of Personal Data

Subject to the restrictions set forth in the Principal Agreement You may submit Personal Data to LearnUpon, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to the following categories of Personal Data:

  • First and last name
  • Email.

Annex 2 – Description of Security Measures

Security Policies and Management

LearnUpon shall ensure senior management assigns security responsibility and reviews the implementation of security requirements through an organization-wide security policy (“Information Security Policy”). The Information Security Policy shall include a data classification system, which shall protect Your Confidential Information (“Confidential Information”) with at least the same level of protection that LearnUpon uses for similarly classified information. These security requirements, the Information Security Policy, and related guidelines shall be communicated to all LearnUpon employees and authorized subcontractors. LearnUpon shall also communicate any additional security requirements required by You. LearnUpon shall conduct/review annual security risk assessments as part of its normal business operations and as part of its incident response process as described below, and shall modify its security related processes, procedures, and guidelines based on the findings in such security risk assessments.

LearnUpon’s personnel, its subcontractors, and external service providers shall sign non-disclosure agreements with terms at least as restrictive as those contained in this Agreement with LearnUpon, prior to being given access to Your Confidential Information. LearnUpon shall ensure there is an appropriate exit procedure for LearnUpon personnel, which includes disabling user access and returning assets when terminating employment or ending relationships.

Training

LearnUpon shall conduct information security training during employee induction and at least once per year thereafter to all existing employees. LearnUpon shall ensure that emphasis is given to the proper handling of Your Confidential Information. LearnUpon shall have a policy to define acceptable usage of LearnUpon systems for email, messaging systems, internet access, etc.

Security Incident Response and Business Continuity

LearnUpon shall maintain a 24/7 security incident response plan (“Plan”) that complies with applicable laws and relevant industry standards applicable to the services and represents and warrants that it complies with Plan procedures. LearnUpon shall notify You in the event of a breach of security within 72 hours upon becoming aware of the incident unless directed otherwise by an appropriate/authorised law enforcement agency. LearnUpon will maintain a disaster identification and recovery system to deal with business continuity in the case of a security incident.

Access Controls

LearnUpon shall implement and maintain reasonable and appropriate access controls to protect Your Confidential Information against unauthorized or accidental access, use, disclosure, deletion, loss, or alteration in a manner that at minimum meets industry standards applicable to the Services. Measures will include but are not limited to:

Logical Segmentation. LearnUpon shall maintain Your Confidential Information so that it is logically segmented from LearnUpon and other customers’ information so that only authorized users (i.e., employees, subcontractors or other external service providers) can access Your Confidential Information.

Physical Access Controls. LearnUpon shall take reasonable measures to ensure physical and logical security controls to mitigate the risk of unauthorised intrusion into LearnUpon’s premises;

System Access Controls. LearnUpon shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall vary based on the nature of processing undertaken and may include:

  • up to date anti-virus software
  • systems and software development processes consistent with industry standards to prevent the introduction of Viruses into systems, software, website or other media used to supply the Service
  • strong authentication methods (two-factor authentication) for those of its personnel who work remotely and for those with administrative privileges upon systems used to provide the Services
  • encryption technologies upon portable devices such as laptops, PDAs and smartphones
  • a patch management process, which ensures patches are appropriately tested and promptly deployed to rectify security vulnerabilities in a reasonable timeframe
  • robust processes to ensure that changes to the premises, networks, systems, software, information, websites and other media used to supply the Service are appropriately tested and implemented to limit the potential for any adverse impact on the supply of Service
  • processes to continually monitor its network and systems for potential or actual security breaches.

Data Access Controls. LearnUpon shall take reasonable measures to ensure that access to the Confidential Information under its control is restricted to those individuals whom are explicitly authorised to access such Confidential Information. Access shall be limited to those with a business need for such access and to those access privileges required to fulfil that need only. Access shall be assigned using unique logon credentials to ensure accountability is maintained.

Transmission Controls. LearnUpon shall take reasonable measures to ensure secure transfer of Personal Data by means of data transmission. These controls may include:

  • encryption technologies to protect the Confidential Information during transmission and storage and where appropriate, using modern strong encryption cyphers
  • transmission from or to any cloud service providers over TLS or other equivalent secure channel.

Data Backup. LearnUpon shall take reasonable measures to ensure a back-up of the databases in the Service are taken on a regular basis and to restore the availability and access to Confidential Information in a timely manner in the event of a physical or technical incident (including, without limitation, measures relating to business continuity and disaster recovery) if required.

Annex 3 – EU Standard Contractual Clauses

2010 EU Model clauses extracted from 2010/87/EU Annex EU Standard Contractual Clauses for the transfer of personal data to data processors established in third countries which do not ensure an adequate level of data protection

Introduction

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

Company is the data exporting organisation (the data exporter)

And

LearnUpon is the data importing organisation (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.

AGREED TERMS

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 EU Data Protection Laws 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 entity 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 EU Data Protection Laws 95/46/EC;

(d) the "sub-processor" means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with 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; and

(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.

2. Details of the transfer.

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

3. Third-party beneficiary clause.

3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1(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.

3.2 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.

3.3 The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

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

4. Obligations of the data exporter.

4.1 The data exporter agrees and warrants:

(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 EU Data Protection Laws 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor 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 sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

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

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

5. Obligations of the data importer.

5.1 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 sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

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

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

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

6. Liability.

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

6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor 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 or by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

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

7. Mediation and jurisdiction.

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

(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.

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

8. Co-operation with supervisory authorities.

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

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

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

9. Governing law.

The Clauses shall be governed by the laws of the country of establishment of the data exporter.

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.

11. Sub-processing.

11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter.  Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses.  Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

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

11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of England.

11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

12. Obligation after the termination of personal data-processing services.

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

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

Appendix 1 to the Standard Contractual Clauses

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

Data subjects

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

  • Data exporter’s personnel
  • Personnel of data exporter’s customers and partners.

The data exporter has specified in Annex 1 (Processing of Personal Data) of the Data Processing Agreement any other categories of Data Subjects that are involved in the processing.

Categories of data

The personal data transferred concerns the following categories of data:

  • Non-sensitive identification data (first and last name) and contact details (email address).

The data exporter has specified in Annex 2 (Description of Security Measures) of the Data Processing Agreement any other categories Personal Data that are involved in the processing.

Processing operations

The personal data transferred will be subject to the following processing activities:

The nature and purpose of the processing are set forth in the Agreement between data importer and data exporter (LearnUpon’s Subscription Agreement) as established in the Data Processing Agreement.

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): The Data Importer will implement reasonable administrative, physical, managerial and technical controls safeguards for protection of the security, confidentiality and integrity of Personal Data with respect to the Services in accordance with applicable legal requirements, and as set forth in Annex 2 (Description of Security Measures), and as otherwise agreed by the parties in writing.

Data Importer will not materially decrease the overall security of the Services during the term of the Agreement(s).