DEVAR DATA PROCESSING ADDENDUM
This Data Processing Addendum (the "Addendum") is made by and between DEVAR and Licensee ("Developer").
This Addendum is incorporated into the Terms and Conditions, license agreement, and/or other commercial agreement between Developer and DEVAR ("Agreement") and applies in respect of the provision of the Services to the Developer if the Processing of Developer Personal Data (as defined below) is subject to the GDPR, only to the extent the Developer is a Controller of Developer Personal Data and DEVAR is a Processor. The Addendum is intended to satisfy the requirements of Article 28 (3) of the GDPR. This Addendum shall be effective for the term of the Agreement.
1. DEFINITIONS
1.1. For the purposes of the Addendum:
1.1.1. "Developer Personal Data" means the Personal Data described under Section 2 of this Addendum, in respect of which the Developer is the Controller;
1.1.2. "Data Protection Legislation" means all applicable legislation relating to data protection and privacy including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time;
1.1.3. "GDPR" means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
1.1.4. "Personal Data", "Data Subject", "Personal Data Breach", "Process", "Processor" and "Controller" will each have the meaning given to them in the GDPR; and
1.1.5. "Standard Contractual Clauses" means the agreement executed by and between the parties and attached hereto as Schedule 1 pursuant to the European Commission's decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.2. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
2. DETAILS OF THE PROCESSING
2.1. Categories of Data Subjects. This Addendum applies to the Processing of Developer Personal Data relating to end users of Developer's products and services.
2.2. Types of Personal Data. Developer Personal Data includes Personal Data, the extent of which is determined and controlled by the Developer in its sole discretion, such as IP address, browser user agent, the make, model, and operating system of end user devices, information related to end users' use of Developer products that incorporate the Service (i.e., the length of time the Service is running), a unique device/application identifier that cannot be used to track devices across applications or websites, and, with end user permission, camera data from the end user device.
2.3. Subject-Matter and Nature of the Processing. The subject-matter of Processing of Developer Personal Data by DEVAR is the provision of the Services to the Developer that involves the Processing of Developer Personal Data. Developer Personal Data will be subject to those Processing activities which DEVAR needs to perform in order to provide the Services pursuant to the Agreement.
2.4. Purpose of the Processing. Developer Personal Data will be Processed by DEVAR for purposes of providing the Services set out into the Agreement.
2.5. Duration of the Processing. Developer Personal Data will be Processed for the duration of the Agreement, subject to Section 10 of this Addendum.
3. PROCESSING OF DEVELOPER PERSONAL DATA
3.1. The parties acknowledge and agree that Developer is the Controller of Developer Personal Data and DEVAR is the Processor of that data. DEVAR will only Process Developer Personal Data as a Processor on behalf of and in accordance with the Developer's prior written instructions, including with respect to transfers of personal data. DEVAR is hereby instructed to Process Developer Personal Data to the extent necessary to enable DEVAR to provide the Services in accordance with the Agreement.
3.2. If DEVAR cannot process Developer Personal Data in accordance with Developer's instructions due to a legal requirement under any applicable European Union or Member State law, DEVAR will (i) promptly notify the Developer of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and (ii) cease all Processing of the affected Developer Personal Data (other than merely storing and maintaining the security of the affected Developer Personal Data) until such time as the Developer issues new instructions with which DEVAR is able to comply.
3.3. Each Developer and DEVAR will comply with their respective obligations under the Data Protection Legislation. Developer shall ensure that Developer has obtained (or will obtain) all rights and consents (if required) which are necessary for DEVAR to Process Developer Personal Data in accordance with this Addendum.
3.4. Developer acknowledges that DEVAR does not maintain Developer Personal Data in a manner that allows DEVAR to associate the Developer Personal Data with any particular Data Subject. Accordingly, Developer agrees that DEVAR is not required to provide the assistance offered in Sections 7, 8, and 9 of this Addendum unless (a) the purposes for which Developer processes the Developer Personal Data require Developer to identify the Data Subject and (b) Developer provides DEVAR with information sufficient to allow DEVAR to associate the Developer Personal Data with a Data Subject.
3.5. In connection with the performance of the Agreement, the Standard Contractual Clauses as attached to this Addendum as Schedule 1 will apply to Developer Personal Data that is transferred outside the European Economic Area ("EEA"), either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will cease to apply if DEVAR has implemented an alternative recognized compliance mechanism for the lawful transfer of personal data outside the EEA pursuant to Article 46 of the GDPR, like certification to the Privacy Shield framework.
4. CONFIDENTIALITY
4.1. DEVAR will ensure that any person whom DEVAR authorizes to Process Developer Personal Data on its behalf is subject to confidentiality obligations in respect of that Developer Personal Data.
5. SECURITY MEASURES
5.1. DEVAR will implement appropriate technical and organizational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Developer Personal Data (described under Appendix 2 to the Standard Contractual Clauses).
5.2. DEVAR will, at the Developer's request and subject to the Developer paying all of DEVAR's fees at prevailing rates, and all expenses, provide the Developer with reasonable assistance as necessary for the fulfilment of the Developer's obligation to keep Developer Personal Data secure.
6. SUB-PROCESSING
6.1. Developer authorizes DEVAR to appoint sub-Processors to perform specific services on DEVAR's behalf which may require such sub-Processors to Process Developer Personal Data. For the avoidance of doubt, the above authorization constitutes Developer's prior written consent to the sub-Processing by DEVAR for purposes of Clause 11 of the Standard Contractual Clauses. DEVAR will inform Developer of any intended changes concerning the addition or replacement of any sub-Processors and Developer will have an opportunity to object to such changes on reasonable grounds within fifteen (15) business days after being notified.
6.2. DEVAR will enter into a binding written agreement with the sub-Processor that imposes on the sub-Processor the same obligations that apply to DEVAR under this Addendum. Where any of its sub-Processors fails to fulfil its data protection obligations, DEVAR will be liable to the Developer for the performance of its sub-Processors' obligations.
6.3. Notwithstanding the foregoing, if DEVAR engages a significant vendor as a sub-Processor such as Amazon Web Services, Inc., Microsoft, Inc. or Google, Inc. (a "Super sub-Processor"), Developer acknowledges that DEVAR shall be entitled to contract on the standard terms of the Super sub-Processor and, to the extent that this Addendum imposes obligations and liabilities that are inconsistent with the obligations and liabilities assumed by the Super sub-Processor under the Super sub-Processor's standard terms, the standard terms of the Super sub-Processor shall apply mutually as between DEVAR and Developer to the exclusion of the inconsistent terms of this Addendum.
7. DATA SUBJECT RIGHTS
7.1. Subject to Section 3.4, DEVAR will provide the Developer with assistance necessary for the fulfilment of the Developer's obligation to respond to requests for the exercise of Data Subjects' rights. Developer shall be solely responsible for responding to such requests. DEVAR shall not respond to such requests without Developer's prior written consent and written instructions.
8. PERSONAL DATA BREACHES
8.1. DEVAR will notify the Developer without undue delay after it becomes aware of any Personal Data Breach affecting any Developer Personal Data. At the Developer's request and subject to Section 3.4, DEVAR will promptly provide the Developer with all reasonable assistance necessary to enable the Developer to notify relevant security breaches to the competent data protection authorities and/or affected Data Subjects, if Developer is required to do so under the GDPR. Developer is solely responsible for complying with data incident notification requirements applicable to Developer and fulfilling any third-party notification obligations related to any data incidents.
9. DATA PROTECTION IMPACT ASSESSMENT; PRIOR CONSULTATION
9.1. Subject to Section 3.4, DEVAR will, at the Developer's request, provide the Developer with reasonable assistance to facilitate conducting data protection impact assessments and consultation with data protection authorities, if the Developer is required to engage in such activities under the GDPR, and solely to the extent that such assistance is necessary and relates to the Processing by DEVAR of the Developer Personal Data, taking into account the nature of the Processing and the information available to DEVAR.
10. RETURN OR DELETION OF DEVELOPER PERSONAL DATA
10.1. DEVAR will return or delete, at Developer's choice, Developer Personal Data to the Developer after the end of the provision of Services relating to the Processing, and delete existing copies unless the applicable European Union or member state law requires storage of the data. Without prejudice to the foregoing, DEVAR may retain anonymized data pursuant to the Agreement.
11. INFORMATION
11.1 DEVAR at the Developer's request and provided that the Developer agrees to the non-disclosure obligations acceptable to DEVAR and pays all DEVAR fees at the current rates as well as all expenses, will provide the Developer with all the information necessary for the Developer to demonstrate compliance with its obligations under DEVAR and allow for audits, including inspections conducted by the Developer or by the auditor on behalf of the Developer (provided that such an auditor agrees to the obligations under DEVAR's confidentiality obligations). For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential by DEVAR. DEVAR will notify DEVAR immediately if it believes that a Developer's instruction is in violation of data protection law, and provided that such inspections must be conducted with at least six weeks written notice within the normal business day on a mutually agreed date and time, not more than once a year. For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential by DEVAR. DEVAR shall notify DEVAR immediately if it believes that a Developer's instruction is in violation of data protection legislation. and provided that such inspections shall be conducted with at least six weeks written notice within the normal business day on a mutually agreed date and time, not more than once a year. For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential to DEVAR. DEVAR will notify DEVAR immediately if it believes that the instruction from the Developer violates data protection legislation. 1 shall be deemed confidential information of DEVAR. DEVAR will inform the developer immediately if it believes that the instructions from the developer are in violation of data protection legislation. 1 is considered confidential information from DEVAR. DEVAR will inform the developer immediately if it believes that the instructions from the developer are in violation of data protection legislation.
12. LIABILITY
12.1. Each party's liability towards the other party under or in connection with this Addendum will be limited in accordance with the provisions of the Agreement.
12.2. The Developer acknowledges that DEVAR is reliant on the Developer for direction as to the extent to which DEVAR is entitled to Process Developer Personal Data on behalf of Developer in performance of the Services. Consequently, DEVAR will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by DEVAR that results from the Developer's instructions or from Developer's failure to comply with its obligations under the applicable data protection law.
13. GENERAL PROVISIONS
13.1. With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and the Agreement, the provisions of this Addendum shall prevail.
SCHEDULE 1
Commission Decision C (2010)593
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organization: the entity identified as Developer in the Addendum (the data exporter)
And
Name of the data importing organization: DEVAR (the data importer)
each "party"; together "the parties",
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the 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;
(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the 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.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational 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, unauthorized 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 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).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub processor 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 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 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 sub processor 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 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.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against its third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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.
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).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Sub processing
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 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 sub processor's obligations under such agreement.
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.
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 the Member State in which the data exporter is established.
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 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the 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.
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 exporter. The data exporter is the entity identified as "Developer" in the Addendum.
Data importer. The data importer is the entity identified as "DEVAR" in the Addendum.
Data subjects. The personal data transferred concern the following categories of data subjects (please specify):
Data subjects are defined in Section 2.1 of the Addendum.
Categories of data. The personal data transferred concern the following categories of data (please specify):
Categories of personal data are defined in Section 2.2 of the Addendum.
Special categories of data (if appropriate). The personal data transferred concern the following special categories of data (please specify):
Not applicable.
Processing operations. The personal data transferred will be subject to the following basic processing activities (please specify):
The processing activities defined in Section 2 of the Addendum and in the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
This Data Processing Addendum (the "Addendum") is made by and between DEVAR and Licensee ("Developer").
This Addendum is incorporated into the Terms and Conditions, license agreement, and/or other commercial agreement between Developer and DEVAR ("Agreement") and applies in respect of the provision of the Services to the Developer if the Processing of Developer Personal Data (as defined below) is subject to the GDPR, only to the extent the Developer is a Controller of Developer Personal Data and DEVAR is a Processor. The Addendum is intended to satisfy the requirements of Article 28 (3) of the GDPR. This Addendum shall be effective for the term of the Agreement.
1. DEFINITIONS
1.1. For the purposes of the Addendum:
1.1.1. "Developer Personal Data" means the Personal Data described under Section 2 of this Addendum, in respect of which the Developer is the Controller;
1.1.2. "Data Protection Legislation" means all applicable legislation relating to data protection and privacy including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time;
1.1.3. "GDPR" means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
1.1.4. "Personal Data", "Data Subject", "Personal Data Breach", "Process", "Processor" and "Controller" will each have the meaning given to them in the GDPR; and
1.1.5. "Standard Contractual Clauses" means the agreement executed by and between the parties and attached hereto as Schedule 1 pursuant to the European Commission's decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
1.2. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
2. DETAILS OF THE PROCESSING
2.1. Categories of Data Subjects. This Addendum applies to the Processing of Developer Personal Data relating to end users of Developer's products and services.
2.2. Types of Personal Data. Developer Personal Data includes Personal Data, the extent of which is determined and controlled by the Developer in its sole discretion, such as IP address, browser user agent, the make, model, and operating system of end user devices, information related to end users' use of Developer products that incorporate the Service (i.e., the length of time the Service is running), a unique device/application identifier that cannot be used to track devices across applications or websites, and, with end user permission, camera data from the end user device.
2.3. Subject-Matter and Nature of the Processing. The subject-matter of Processing of Developer Personal Data by DEVAR is the provision of the Services to the Developer that involves the Processing of Developer Personal Data. Developer Personal Data will be subject to those Processing activities which DEVAR needs to perform in order to provide the Services pursuant to the Agreement.
2.4. Purpose of the Processing. Developer Personal Data will be Processed by DEVAR for purposes of providing the Services set out into the Agreement.
2.5. Duration of the Processing. Developer Personal Data will be Processed for the duration of the Agreement, subject to Section 10 of this Addendum.
3. PROCESSING OF DEVELOPER PERSONAL DATA
3.1. The parties acknowledge and agree that Developer is the Controller of Developer Personal Data and DEVAR is the Processor of that data. DEVAR will only Process Developer Personal Data as a Processor on behalf of and in accordance with the Developer's prior written instructions, including with respect to transfers of personal data. DEVAR is hereby instructed to Process Developer Personal Data to the extent necessary to enable DEVAR to provide the Services in accordance with the Agreement.
3.2. If DEVAR cannot process Developer Personal Data in accordance with Developer's instructions due to a legal requirement under any applicable European Union or Member State law, DEVAR will (i) promptly notify the Developer of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and (ii) cease all Processing of the affected Developer Personal Data (other than merely storing and maintaining the security of the affected Developer Personal Data) until such time as the Developer issues new instructions with which DEVAR is able to comply.
3.3. Each Developer and DEVAR will comply with their respective obligations under the Data Protection Legislation. Developer shall ensure that Developer has obtained (or will obtain) all rights and consents (if required) which are necessary for DEVAR to Process Developer Personal Data in accordance with this Addendum.
3.4. Developer acknowledges that DEVAR does not maintain Developer Personal Data in a manner that allows DEVAR to associate the Developer Personal Data with any particular Data Subject. Accordingly, Developer agrees that DEVAR is not required to provide the assistance offered in Sections 7, 8, and 9 of this Addendum unless (a) the purposes for which Developer processes the Developer Personal Data require Developer to identify the Data Subject and (b) Developer provides DEVAR with information sufficient to allow DEVAR to associate the Developer Personal Data with a Data Subject.
3.5. In connection with the performance of the Agreement, the Standard Contractual Clauses as attached to this Addendum as Schedule 1 will apply to Developer Personal Data that is transferred outside the European Economic Area ("EEA"), either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will cease to apply if DEVAR has implemented an alternative recognized compliance mechanism for the lawful transfer of personal data outside the EEA pursuant to Article 46 of the GDPR, like certification to the Privacy Shield framework.
4. CONFIDENTIALITY
4.1. DEVAR will ensure that any person whom DEVAR authorizes to Process Developer Personal Data on its behalf is subject to confidentiality obligations in respect of that Developer Personal Data.
5. SECURITY MEASURES
5.1. DEVAR will implement appropriate technical and organizational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Developer Personal Data (described under Appendix 2 to the Standard Contractual Clauses).
5.2. DEVAR will, at the Developer's request and subject to the Developer paying all of DEVAR's fees at prevailing rates, and all expenses, provide the Developer with reasonable assistance as necessary for the fulfilment of the Developer's obligation to keep Developer Personal Data secure.
6. SUB-PROCESSING
6.1. Developer authorizes DEVAR to appoint sub-Processors to perform specific services on DEVAR's behalf which may require such sub-Processors to Process Developer Personal Data. For the avoidance of doubt, the above authorization constitutes Developer's prior written consent to the sub-Processing by DEVAR for purposes of Clause 11 of the Standard Contractual Clauses. DEVAR will inform Developer of any intended changes concerning the addition or replacement of any sub-Processors and Developer will have an opportunity to object to such changes on reasonable grounds within fifteen (15) business days after being notified.
6.2. DEVAR will enter into a binding written agreement with the sub-Processor that imposes on the sub-Processor the same obligations that apply to DEVAR under this Addendum. Where any of its sub-Processors fails to fulfil its data protection obligations, DEVAR will be liable to the Developer for the performance of its sub-Processors' obligations.
6.3. Notwithstanding the foregoing, if DEVAR engages a significant vendor as a sub-Processor such as Amazon Web Services, Inc., Microsoft, Inc. or Google, Inc. (a "Super sub-Processor"), Developer acknowledges that DEVAR shall be entitled to contract on the standard terms of the Super sub-Processor and, to the extent that this Addendum imposes obligations and liabilities that are inconsistent with the obligations and liabilities assumed by the Super sub-Processor under the Super sub-Processor's standard terms, the standard terms of the Super sub-Processor shall apply mutually as between DEVAR and Developer to the exclusion of the inconsistent terms of this Addendum.
7. DATA SUBJECT RIGHTS
7.1. Subject to Section 3.4, DEVAR will provide the Developer with assistance necessary for the fulfilment of the Developer's obligation to respond to requests for the exercise of Data Subjects' rights. Developer shall be solely responsible for responding to such requests. DEVAR shall not respond to such requests without Developer's prior written consent and written instructions.
8. PERSONAL DATA BREACHES
8.1. DEVAR will notify the Developer without undue delay after it becomes aware of any Personal Data Breach affecting any Developer Personal Data. At the Developer's request and subject to Section 3.4, DEVAR will promptly provide the Developer with all reasonable assistance necessary to enable the Developer to notify relevant security breaches to the competent data protection authorities and/or affected Data Subjects, if Developer is required to do so under the GDPR. Developer is solely responsible for complying with data incident notification requirements applicable to Developer and fulfilling any third-party notification obligations related to any data incidents.
9. DATA PROTECTION IMPACT ASSESSMENT; PRIOR CONSULTATION
9.1. Subject to Section 3.4, DEVAR will, at the Developer's request, provide the Developer with reasonable assistance to facilitate conducting data protection impact assessments and consultation with data protection authorities, if the Developer is required to engage in such activities under the GDPR, and solely to the extent that such assistance is necessary and relates to the Processing by DEVAR of the Developer Personal Data, taking into account the nature of the Processing and the information available to DEVAR.
10. RETURN OR DELETION OF DEVELOPER PERSONAL DATA
10.1. DEVAR will return or delete, at Developer's choice, Developer Personal Data to the Developer after the end of the provision of Services relating to the Processing, and delete existing copies unless the applicable European Union or member state law requires storage of the data. Without prejudice to the foregoing, DEVAR may retain anonymized data pursuant to the Agreement.
11. INFORMATION
11.1 DEVAR at the Developer's request and provided that the Developer agrees to the non-disclosure obligations acceptable to DEVAR and pays all DEVAR fees at the current rates as well as all expenses, will provide the Developer with all the information necessary for the Developer to demonstrate compliance with its obligations under DEVAR and allow for audits, including inspections conducted by the Developer or by the auditor on behalf of the Developer (provided that such an auditor agrees to the obligations under DEVAR's confidentiality obligations). For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential by DEVAR. DEVAR will notify DEVAR immediately if it believes that a Developer's instruction is in violation of data protection law, and provided that such inspections must be conducted with at least six weeks written notice within the normal business day on a mutually agreed date and time, not more than once a year. For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential by DEVAR. DEVAR shall notify DEVAR immediately if it believes that a Developer's instruction is in violation of data protection legislation. and provided that such inspections shall be conducted with at least six weeks written notice within the normal business day on a mutually agreed date and time, not more than once a year. For clarity's sake, all information provided or received by a Developer pursuant to this Section 11.1 shall be deemed confidential to DEVAR. DEVAR will notify DEVAR immediately if it believes that the instruction from the Developer violates data protection legislation. 1 shall be deemed confidential information of DEVAR. DEVAR will inform the developer immediately if it believes that the instructions from the developer are in violation of data protection legislation. 1 is considered confidential information from DEVAR. DEVAR will inform the developer immediately if it believes that the instructions from the developer are in violation of data protection legislation.
12. LIABILITY
12.1. Each party's liability towards the other party under or in connection with this Addendum will be limited in accordance with the provisions of the Agreement.
12.2. The Developer acknowledges that DEVAR is reliant on the Developer for direction as to the extent to which DEVAR is entitled to Process Developer Personal Data on behalf of Developer in performance of the Services. Consequently, DEVAR will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by DEVAR that results from the Developer's instructions or from Developer's failure to comply with its obligations under the applicable data protection law.
13. GENERAL PROVISIONS
13.1. With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and the Agreement, the provisions of this Addendum shall prevail.
SCHEDULE 1
Commission Decision C (2010)593
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organization: the entity identified as Developer in the Addendum (the data exporter)
And
Name of the data importing organization: DEVAR (the data importer)
each "party"; together "the parties",
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the 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;
(f) 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the 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.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational 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, unauthorized 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 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).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational 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 unauthorized access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub processor 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 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 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 sub processor 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 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.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against its third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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.
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).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Sub processing
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 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 sub processor's obligations under such agreement.
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.
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 the Member State in which the data exporter is established.
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 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the 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.
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 exporter. The data exporter is the entity identified as "Developer" in the Addendum.
Data importer. The data importer is the entity identified as "DEVAR" in the Addendum.
Data subjects. The personal data transferred concern the following categories of data subjects (please specify):
Data subjects are defined in Section 2.1 of the Addendum.
Categories of data. The personal data transferred concern the following categories of data (please specify):
Categories of personal data are defined in Section 2.2 of the Addendum.
Special categories of data (if appropriate). The personal data transferred concern the following special categories of data (please specify):
Not applicable.
Processing operations. The personal data transferred will be subject to the following basic processing activities (please specify):
The processing activities defined in Section 2 of the Addendum and in the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.