1. The Service.
1.1 Asset Health grants you a non-transferrable right to use the Service subject to the terms of the agreement between Asset Health and your employer. By clicking on “I Agree”, you agree to be bound by any and all license agreements that your employer has entered into with Asset Health.
1.2 To provide you with the most current version of the Service, Asset Health reserves the right to update, upgrade, or otherwise change the Service and any Applications at any time. By clicking on “I Agree”, you signify that you understand and agree that such updates, upgrades or other changes may occur from time to time during your use of the Service and Applications without prior notice to you.
2. Access to the Service and Security.
2.1 Asset Health will create an account, with an associated password, through which you may access the Service based on the actual Services purchased by your employer. The date you are provided with such password shall be the Service Activation Date. You may access the Site either through a web browser or, as applicable, through certain other Applications.
2.2 Other than distribution of the initial password for access to the Service, Asset Health will have no obligation or responsibility with regard to the use, distribution or management of such passwords. You agree to notify Asset Health immediately if you suspect any unauthorized use of the Service, User Site or related passwords.
2.3 You acknowledge and agree that there is a strict limit of one user per account on any and all Asset Health Applications. In addition, you may not share or disclose your username or password.
2.4 Children under the age of 13 are not permitted to use the Service and we do not intentionally collect or maintain Personal Information from those who are under 13 years old. Protecting the privacy of children is very important to us. Thus, if we obtain actual knowledge that a user is under 13, we will take steps to remove that user's Personal Information from our databases. We recommend that children between the ages of 13 and 18 obtain their parent's permission before submitting information over the internet. By using the Service, you are representing that you are at least 18 years old, or that you are at least 13 years old and have your parents' permission to use the Service.
3. Restrictions and Prohibited Acts. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner that could damage, disable, overburden, or impair any Asset Health server, or the network(s) connected to any Asset Health server, or interfere with any other party's use and enjoyment of the Service. You may not attempt to gain unauthorized access to services, materials, other accounts, computer systems or networks connected to any Asset Health server or to the website, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You may not use the Service, including any Application, on a timeshare or service bureau basis. In addition, you may not access or use the Service or distribute or display Content in any manner that:
3.1 Violates any laws or regulations or is not for a legitimate business purpose;
3.2 Introduces a virus, worm, Trojan horse or other harmful software code;
3.3 Consumes excessive CPU time, bandwidth, memory storage space, or any other system or network resources;
3.4 Engages in any systematic extraction of data or data fields, including without limitation email addresses;
3.5 Exposes Asset Health to adverse publicity;
3.6 Infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret or other intellectual property rights of any third party or Asset Health;
3.7 Discloses or collects personally identifying information or private information about any third party without that party's consent (or parental consent in the case of a minor);
3.8 Transmits, promotes, solicits or comprises harassing, abusive, threatening, obscene, vulgar, libelous, pornographic or otherwise objectionable or unlawful content or activity;
3.9 Attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity;
3.10 Transmits junk mail, spam, chain letters, or other unsolicited email or duplicative messages;
3.11 Sells, leases, or rents access to or use of the Service;
3.12 Advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any high-risk activity where damage or injury to persons, property, environment or business may result;
3.13 Designs, develops, or creates a competitive product or service to Asset Health's products and services;
3.14 Links to content that promotes any of the above; or
3.15 Asset Health, using commercially reasonable judgment, finds objectionable.
4. Acceptable Use Policy.
Notwithstanding the covenants and restrictions set forth in Section 3, above, this Acceptable Use Policy describes actions that Asset Health, Inc. ("Asset Health") prohibits when you use its website and/or services (the "Services"). The terms "you," "your," and "yours" refer to the Asset Health workforce member, customer or participant, or vendor. The Acceptable Use Policy is governed by our Terms of Service. Our Terms of Service take precedence over any conflicting Acceptable Use Policy provision. BY USING THE SERVICES OR THE ASSET HEALTH WEBSITE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THIS ACCEPTABLE USE POLICY. IF YOU DO NOT AGREE TO THIS ACCEPTABLE USE POLICY PLEASE DO NOT USE THE WEBSITE AND/OR SERVICES. Asset Health may in its sole discretion determine whether you are in violation of this Acceptable Use Policy. The Services may be used only for lawful purposes and may not be used for any illegal activities. Using the Services in an illegal, abusive or otherwise inappropriate manner that interferes with or diminishes others' use and enjoyment of the Services is prohibited. The following list gives examples of illegal, abusive, interfering, unacceptable or otherwise inappropriate behavior while using the Services. This list is provided by way of example and shall not be considered exhaustive.
- • Adversely impacting the availability, reliability or stability of Asset Health's Services.
- • Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of Asset Health's Services.
- • Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to Asset Health, to any user of our Services, to any of our respective customers or to their customers.
- • Testing or reverse-engineering the Services in order to find limitations, vulnerabilities or evade filtering capabilities.
- • Using the Services in any manner that may subject Asset Health or any third party to liability, damages or danger.
- • Using the Services in any manner that violates any applicable third party policies or requirements that Asset Health has communicated to the customer.
- • Engaging in fraud with respect to your account.
- • Using your account to engage in fraudulent activity with respect to third parties.
- • Using any of the Asset Health Properties or Asset Health Marks other than as expressly permitted in the Terms of Service.
- • Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing or misappropriating the rights of any third party.
- • Promoting or engaging in illegal activities.
- • Engaging in activities or transmitting through the Services any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
- • Harvesting or otherwise collecting information about others from Asset Health's website without their express consent.
- • Interfering with or disrupting networks connected to the Services or violating the regulations, policies or procedures of such networks.
- • Using the Services, or a component of the Services, in a manner not authorized by Asset Health.
Violation of this Acceptable Use Policy may result in the immediate suspension or termination of your employment with Asset Health
as a workforce member, your account, civil and/or criminal liability, and Asset Health
may, in addition to any remedy that it may have at law or in equity, terminate permission for you to use the Services. In such event, you are still liable for any and all outstanding charges accumulated through your use of the Services, including uses in violation of this Acceptable Use Policy or the laws of any jurisdiction. In addition, Asset Health
may investigate incidents that are contrary to this Acceptable Use Policy and provide requested information to third parties who have provided notice to Asset Health
stating that they have been harmed by your failure to abide by this Acceptable Use Policy. Asset Health
's failure to enforce this policy in each and every instance in which it might have application does not amount to a waiver of Asset Health
's rights hereunder.4.2 Changes to Acceptable Use Policy.
We reserve the right to change the Acceptable Use Policy from time to time without notice by posting changes to Asset Health
's website. When we do, we will also revise the "last update" date of the Acceptable Use Policy.5. Privacy. Asset Health
Term. This Agreement shall become effective when you electronically register your acceptance of this Agreement by either clicking “I Agree” or by registering for and using the Service. The Term of this Agreement shall commence on the Service Activation Date and will continue in effect until the Service Term expires.6.2
Termination by Asset Health
. Asset Health
may at any time terminate the Service and this Agreement, or suspend or restrict your access to the Service in whole or in part, if:
6.2.1 Asset Health determines in its sole and exclusive judgment that terminating your Service is advisable for security reasons, to protect Asset Health from liability, or for the continued normal and efficient operation of the Service.
6.3 Upon termination of Service, all rights granted to you under this Agreement and any Application License Agreement will terminate immediately. Asset Health reserves the right to delete any data files associated with your use of the Service upon termination of the Service.
7. Proprietary Rights.
7.1 You acknowledge and agree that Asset Health and its licensors own all right, title, and interest in: (a) the Service; (b) the Applications; (c) the User Site; (d) and any other Asset Health software. In addition, you acknowledge that the Service, the Applications, the User Site and any other Asset Health software are protected by United States and international copyrights, trademarks, patents and other proprietary rights and laws. You may not decompile, reverse engineer, decode or otherwise examine the internal functioning of the Service, the Applications, the User Site or any Asset Health software, including the embedded Asset Health Flash Player in Application-generated converted files, and may not make, use, sell, copy, reproduce, distribute, transmit, or create derivative works from the Service, the Application and any other Asset Health software without Asset Health's prior written consent.
7.2 You are welcome to send suggestions on improving the Service, but in doing so, you acknowledge and agree that such suggestions will become the property of Asset Health without obligation to compensate you.
7.3 You agree and authorize Asset Health to disclose any non-identifiable health or other information that you provide to Asset Health to third parties who may use such information only for purposes of research.
8. Websites Links. Asset Health may provide links to other websites or resources as part of the Service only as a convenience to you. Asset Health is not responsible for the contents, products or services on any third party site and the inclusion of any link does not imply that Asset Health endorses the content on such third party sites. You are visiting such third party sites solely at your own risk.
9. Warranty Disclaimers.
9.1 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8 (“SERVICE LEVEL AGREEMENT”), THE SERVICE AND THE APPLICATIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMITTED BY LAW, ASSET HEALTH, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE AND THE APPLICATIONS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ASSET HEALTH DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE CONTINUOUS, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT OUR SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ASSET HEALTH'S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO USER INFORMATION BY THIRD PARTIES.
9.2 THE SECURITY MECHANISMS INCORPORATED IN THE SERVICE HAVE INHERENT LIMITATIONS AND YOU MUST DETERMINE THAT THE SERVICE ADEQUATELY MEETS YOUR REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASSET HEALTH, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
9.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
10. Limitation of Liability.
10.1 NEITHER ASSET HEALTH NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICE OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE OR ANY APPLICATION AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ASSET HEALTH OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2 THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
10.3 THE CONTENT CONTAINED IN THE SERVICE, APPLICATIONS, USER SITE AND ANY OTHER ASSET HEALTH SOFTWARE, INCLUDING BUT NOT LIMITED TO TEXT, GRAPHICS, IMAGES, AUDIO, VIDEO, ANIMATIONS, ETC. (“CONTENT”) ARE FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT; NOR IS IT A REPLACEMENT FOR FINANCIAL OR BENEFITS ADVICE THAT YOU MAY RECEIVE FROM YOUR HUMAN RESOURCES DEPARTMENT OR PERSONAL FINANCIAL ADVISOR. THE INDIVIDUALS THAT APPEAR IN THE COURSE VIDEOS ARE ACTORS AND NOT MEDICAL PROFESSIONALS. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION; YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR HUMAN RESOURCES DEPARTMENT OR PERSONAL FINANCIAL ADVISOR WITH ANY QUESTION YOU MAY HAVE REGARDING HEALTH CARE BENEFITS OR FINANCIAL-RELATED HEALTH CARE ISSUES. ASSET HEALTH IS NOT IN THE BUSINESS OF PROVIDING MEDICAL, HEALTH CARE, OR FINANCIAL ADVICE. RELIANCE ON ANY CONTENT IS SOLELY AT YOUR OWN RISK.
11. Miscellaneous. This Agreement is governed by and construed in accordance with the laws of the State of Michigan, excluding conflict of law provisions. You agree to submit to the exclusive jurisdiction of the courts of the State of Michigan and the United States federal district court located in Wayne County, Michigan. You are solely responsible for your familiarity and compliance with any laws that may prohibit your participation in or use of any part of the Service. This Agreement constitutes the entire agreement between you and Asset Health and supersedes all prior agreements, representations and understandings between the parties regarding the subject matter contained herein. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. Asset Health's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Asset Health in writing. From time to time, Asset Health may be required to update or modify this Agreement and shall provide you notice of such modifications; provided, however, your use of the Service after such notice shall constitute acceptance of the new Agreement. Your rights hereunder may not be assigned or transferred to any third party without the written consent of Asset Health. Each party will provide the other with written notice under this Agreement by sending the other party notice as follows: for you, notice will be sent to the address and contact person for your account and for Asset Health, notice will be sent to Asset Health, 2250 Butterfield Dr., Ste. 100, Troy, MI 48084 Attention: General Counsel.
12. Privacy Shield Model Clauses (Applicable to system access and data transfers from territories outside of North America).
For the purposes of the Clauses:
- '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 data1
- 'the data exporter' means the controller who transfers the personal data;
- '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;
- '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;
- '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;
- '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
- 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.
- 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.
- 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.
- 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:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- that it will ensure compliance with the security measures;
- 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;
- 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;
- 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;
- 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
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer2
The data importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- 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,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- 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;
- 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;
- 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;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- 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.
- 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.
- 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
- 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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
- 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.
- 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.
- 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.
- 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 Clauses3. 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.
- 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.
- 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.
- 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
- 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.
- 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.
1. Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.↩2. Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.↩3. This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.↩