Data Processing Addendum

Updated: August 2020
Version: 1.1

This Data Processing Addendum (“Addendum”) is governed by and supplements the Master Services Agreement by and between Hands-On Learning Solutions, LLC d/b/a Skillable and Customer (“Principal Agreement”) and applies when GDPR (defined below) applies to your use of the Services.

1.Definitions. The following list of terms and definitions are applicable to this Addendum.

a. “Applicable Laws” shall mean (a) laws of the European Union or a Member State that pertain to Customer’s Personal Data and/or Customer; and (b) Data Protection Laws that are applicable to Customer or Customer’s Personal Data.

b. “Authorized Persons” shall mean any person who processes Personal Data on Company’s behalf, including Company’s employees, officers, partners, principles, contractors and Subprocessors.

c. “Data Protection Laws” shall mean the EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country.

d. “EEA” shall mean the European Economic Area.

e. “EU Data Protection Laws” shall mean (1) prior to May 25, 2018, EU Directive 95/46/EC of the European Parliament and of Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data; and (ii) on and after May 25, 2018, EU General Data Protection Regulation 2016/679 of the European Parliament and Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and all applicable member state implementations thereof.

f. “GDPR” shall mean the EU General Data Protection Regulation 2016/679 of the European Parliament and of Council.

g. “Model Clauses” shall mean the standard contractual clauses, approved by the European Commission and attached hereto as Exhibit B.

h. “Services” shall mean the services and other activities to be supplied to or carried out by or on behalf of Company for Customer in accordance with the Principal Agreement.

i. The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “processing”, “Processor”, and “Supervisory Authority” shall have the same meaning as set forth in the GDPR.

j. Capitalized terms not otherwise defined in this Addendum shall have the meaning given to them in the Principal Agreement.

2.Company’s Processing of Customer’s Personal Data

a. The Parties hereby acknowledge and agree that Customer is acting as the controller and Service Provider as a processor as those terms are defined under the GDPR.

b. Company shall:

  1. comply with all applicable Data Protection Laws in Processing of Customer’s Personal Data; and
  2. not engage in any Processing of Customer’s Personal Data other than in accordance with Customer’s documented instructions as set forth in Exhibit A, unless Processing is required by Applicable Laws to which Company, as a Processor, is subject.


c. Customer shall:

  1. instruct Company and by virtue of such instruction, thereby authorizes Company and each Subprocessor to process Customer’s Personal Data; and
  2. if applicable, transfer Customer Personal Data to any country or territory; as reasonably necessary for the provision of the Services and consistent with the Principal Agreement;
    i. warrants and represents that it is and will, at all relevant times, remain duly and effectively authorized to give the instructions set forth in Section 2(b)(i) of this Addendum.


d. Exhibit A sets out certain information regarding the Processors’ Processing of Customer Personal Data in accordance with Article 28(3) of the GDPR and, as applicable, equivalent requirements of Data Protection Laws. For clarity, the instructions set forth in Exhibit A do not confer any right or impose any obligation on any party to this Addendum.

e. Customer may make reasonable amendments to Exhibit A as Customer reasonably considers necessary to meet the requirements of the applicable Data Protection Laws, by providing written notice to Company.

f. Customer warrants that its execution of this Addendum has been authorized by proper corporate or company action and that it has caused a properly authorized officer or representative to execute and deliver this Addendum on its behalf.

3.Company Personnel

a. Company shall:

  1. take reasonable steps to ensure the reliability of any Authorized Persons who may have access to the Customer’s Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know and have access to the relevant Personal Data of Customer, as required for carrying out Company’s obligations under the Principal Agreement, and to comply with Applicable Laws as it pertains to that individual’s duties to the Company or Subprocessor; and
  2. ensure that any Authorized Persons that processes Personal Data have executed an agreement committing such Authorized Persons to a duty of confidentiality.


4.Subprocessing

a. Customer authorizes Company to appoint Subprocessors as set forth in this Section 4 and in accordance with the Principal Agreement.

b. Service Provider may continue to use those Subprocessors that are already engaged by Service Provider as of the Effective Date of this Addendum, provided however, that Service Provider ensures that each Subprocessor meets the obligations set forth in Section 4(d). A list of Service Provider’s Subprocessors is available here: https://skillable.com/subprocessors.

c. Company shall give Customer advance written notice of not less than 30 calendar days of Company’s intent to engage a new Subprocessor, including full details of the Processing that is to be undertaken by the Subprocessor. If Customer provides notice to Company of any objections to a proposed Subprocessor, in writing, within fourteen (14) days’ of receiving Company’s proposed appointment of the Subprocessor, then:

  1. Company shall not engage the Subprocessor to process the Personal Data; or
  2. Company may elect to immediately suspend or terminate the processing of Personal Data under the Principal Agreement and/or immediately suspend or terminate the Principal Agreements, in each case without penalty.

d. As it pertains to each Subprocessor, Company shall:

  1. conduct adequate due diligence on the Subprocessor, prior to such Subprocessor engaging in any processing activity with any Customer Personal Data, to ensure that the Subprocessor has the capability to provide an adequate level of protection for Customer’s Personal Data in accordance with the Principal Agreement;
  2. ensure the Company has a contractual arrangement with the Subprocessor, which imposes the same data protection terms and conditions on such Subprocessor, as are set forth in this Addendum and in accordance with the requirements of Article 28(3) of the GDPR;
  3. remain fully liable for any breach of this Addendum or the Principal Agreement that is caused by an act, error or omission of Company’s Subprocessor;
  4. to the extent a contractual arrangement concerns the transfer of Personal Data that necessitates the use of the Model Clauses set forth in Exhibit B, Company shall ensure that it enters into an agreement incorporating the Model Clauses with the Customer; and
  5. upon request from Customer, Company shall make copies of its agreements with Subprocessors available to Customer to review, which may be redacted by Company, to remove commercial information that is not relevant to the purpose of this Addendum.


5.Cooperation

a. Company shall reasonably cooperate with Customer to enable Customer (or its third party Controller) to respond to any requests, complaints or other communications from a Data Subject, and governmental, regulatory or judicial bodies relating to the processing of Personal Data under the Principal Agreement, including requests from data subjects seeking to exercise their rights under Applicable Laws. If any such request, complaint or communication is received by or otherwise made to Company, Company shall, to the extent not prohibited by applicable law, immediately notify Customer and will not respond to such communication without Customer’s express authorization.

b. Except as otherwise prohibited by applicable law, if Company receives a subpoena, court order, warrant or other legal demand from a third party, including, but not limited to law enforcement or other governmental, regulatory or judicial authorities, seeking the disclosure of Personal Data, Company shall not disclose any information without first immediately notifying Customer, in writing, of such request in order to allow Customer to limit, challenge or protect against such disclosure, provided, however, that Company’s cooperation pursuant to this Subsection (b) of Section 5, shall be at Customer’s sole expense.

c. Company and each Subprocessor shall provide reasonable assistance to Customer with any data protection impact assessments, and consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of Customer by Articles 35 or 36 of the GDPR or similar provisions of a Data Protection Laws, in relation to the Processing of Customer’s Personal Data and taking into account the nature of the Processing and information available to Processors and Subprocessors.

6.Personal Data Breach

a. In the event of a Personal Data Breach affecting Customer’s Personal Data, Company shall:

  1. immediately notify Customer of the Personal Data Breach without undue delay and in no event later than 48 hours after Company or any Subprocessor first becomes aware of the occurrence of such Personal Data Breach; and
  2. provide Customer with sufficient information in order to allow Customer to meet any obligations it may have to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.


b. Company shall take such measures and actions as appropriate to remedy or mitigate the effects of the Personal Data Breach and shall cooperate with Customer by providing regular updates and other reasonably requested information about developments in connection with the Personal Data Breach response, investigation and remediation activities.

c. Any press release, notification, public or regulatory announcement or communication concerning a Personal Data Breach shall be made solely at Customer’s discretion, except as otherwise required by Applicable Laws.

7.Security

a. As it concerns the Processing of Personal Data pursuant to the Principal Agreement and this Addendum, Company shall take into account the state of the art, costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons (“Assessment of the Risks”).

b. Company and each relevant Subprocessor, in relation to processing the Customer Personal Data under the Principal Agreement or this Addendum, shall implement the appropriate technical and organizational measures to ensure a level of security appropriate to the Assessment of Risks, including, as appropriate, the measures referenced in Articles 32(1) of the GDPR.

c. As part of the Assessment of Risks in Section 7(a) of this Addendum, Company shall take into account the specific risks presented by such Processing of a Personal Data Breach.

8.Audit Reports and Inspection

a. Upon request by Customer, Company shall provide copies of all information necessary to demonstrate Company’s compliance with this Addendum.

b. Company shall allow for and provide its reasonable cooperation with an audit under this Addendum, including inspections by any Customer or an auditor that is mutually agreed upon by the parties, in relation to the Processing of Customer’s Personal Data by the Company or a Subprocessor.

c. Customer’s audit rights under Section 8(a) and (b) of this Addendum shall only arise to the extent the Principal Agreement does not otherwise give Customer information and audit rights that meet the relevant requirements of the Data Protection Laws, including Article 28(3)(h) of the GDPR, where applicable.

d. Customer shall give Company reasonable notice of any audit or inspection to be conducted pursuant to Section 8(b) of this Addendum and shall make reasonable efforts to avoid causing disruption to the Company’s or Subprocessors’ premises, equipment, personnel and business while Customer or auditor personnel are on the premises conducing an audit or inspection.

e. Any of Customer’s or the auditor’s personnel will not be granted access to Company’s or a Subprocessor’s premises unless such personnel provides reasonable evidence of their identity, which shall be provided to Company or the relevant Subprocessor prior to the commencement of the audit or inspection.

f. No audit or inspection may take place outside of normal business hours for the premises where the audit or inspection will be conducted unless in the case of an emergency, which shall be approved in advance and in writing by both Customer and Company or the applicable Subprocessor.

g. No more than one audit or inspection shall be permissible in any calendar year, with respect to the Company or a Subprocessor, except where:

  1. Customer reasonably articulates, in writing, the necessity of an audit or inspection on the basis of having a genuine concern as to Company’s or the relevant Subprocessor’s compliance with this Addendum; or
  2. Customer is required or requested to carry out an audit or inspection by Data Protection Laws, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, or
  3. Where Customer has completed an audit or inspection of Company and identified concerns or requirements that need addressed in its notice to Company or a relevant Subprocessor and wishes to follow-up to ensure such concern or requirement has been adequately addressed where Company or the applicable Subprocessor does not otherwise demonstrate its compliance or correction.


h. Nothing in this Addendum shall be construed to preclude a Processor from immediately informing Customer of any instruction that the Processor, in its opinion, infringes the GDPR or Applicable Laws.

9.Deletion & Return of Customer Personal Data

a. Upon Customer’s request, or upon termination or expiration of this Addendum or the Principal Agreement, regardless of reason, Company shall promptly destroy or return to Customer all Personal Data in its possession or control, including any Personal Data processed by its Subprocessors.

b. The requirement in Section 9(a) of this Addendum shall not apply to the extent that Company is required by Applicable Laws to retain some or all of the Personal Data, in which case, Company shall isolate and protect the Personal Data from further processing.

10.Transfers of Customer Personal Data

a. Company shall at all times provide a level of protection for Personal Data that is adequate, wherever processed, in accordance with the requirements of Applicable Laws.

b. Company shall not process or transfer any Personal Data to any geographic territory except the territory in which the Personal Data was first collected and Company shall not permit the Personal Data to be processed or transferred unless:

  1. Company has obtained Customer prior written consent; and
  2. Company takes all such measures as are necessary to ensure such processing or transfer is in compliance with the Applicable Laws.


c. Under circumstances where Company processes Personal Data under this Addendum that originates from the EEA, any such consent shall be conditional on Company entering into and complying with the Model Clauses set forth in Exhibit B to this Agreement.

d. Company shall also be required to ensure that any Subprocessor it engages agrees to comply with the Model Clauses set forth in Exhibit B.

e. For the purposes of the Model Clauses and only as it concerns Company and Customer, Company agrees that it is a “data importer” and Customer is the “data exporter” under the Model Clauses.

11.General Terms

a. Except for the changes set forth in this Addendum, the Principal Agreement shall remain unchanged and in full force and effect.

b. In the event of any conflict between the provision of this Addendum and any provision in the Principal Agreement, this Addendum shall control and take precedence. If there is a conflict or inconsistency between this Addendum and the Model Clauses, the Model Clauses shall prevail and take precedence.

c. The obligations imposed upon Company under this Addendum shall survive the expiration or termination of this Addendum so long as Company or a Subprocessor processes Personal Data on behalf of Customer.

d. Without causing prejudice to the provisions in the Model Clauses (Clauses 7 and 9):

  1. As it concerns any disputes or claims arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity, the parties to the Addendum hereby agree and consent to the jurisdiction set forth in the Principal Agreement; and


e. In the event there are changes made to the Data Protection Laws as defined in this Addendum:

i. Customer may:

  1. by providing at least thirty (30) calendar days’ written notice to Company, from time to time, may make any changes to the Model Clauses as they apply to transfers that are subject to restrictions under the GDPR and subject to a Data Protection Law, which are required, as a result of any change in, or a decision of a competent authority under, that Data Protection Law, to allow such transfers to be made, or continue to be made, without breach of that Data Protection Law; and
  2. propose any other amendments or changes to this Addendum, which Customer reasonably consider to be necessary to address the requirements of any Data Protection Law.


ii. In the event that Customer provides notice to Company in accordance with Section 11(e)(i)(1) of this Addendum:

  1. Company and each Subprocessor shall promptly cooperate to ensure that equivalent amendments are made to any agreement put in place in Section 4 of this Addendum; and
  2. Customer shall not unreasonably withhold or delay agreement to any consequential amendments of this Addendum proposed by Company to protect the Subprocessors against additional risks associated with the amendments made under Sections 11(e)(i)(1) and/or 11(e)(ii)(1) of this Addendum.


iii. If Customer should provide notice under Section 11(e)(i)(2), the parties shall promptly discuss the proposed amendments and negotiate, in good faith, those or alternative amendments designed to address the requirements identified in Customer’s notice as soon as is reasonably practicable.

iv. Neither Customer nor Company shall require the consent or approval of any or Subprocessor to amend this Addendum pursuant to Section 11(e)(ii) or otherwise.

v. The parties acknowledge and agree that a breach by Company of this Addendum shall constitute a material breach of the Principal Agreement, in which case and without prejudice to any other right or remedy available to it, Customer may elect to immediately terminate the Principal Agreement in accordance with the termination provision set forth in that Principal Agreement.

vi. In the event any provision of this Addendum is declared to be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in full force and effect. The invalid or unenforceable provision shall be amended as necessary to ensure its validity and enforcement, which preserving the parties’ intentions or, if this is not possible, construed in a manner as if the invalid or unenforceable part had never been contained therein.

vii. This Addendum may not be modified except by a subsequent written instrument signed by both parties.

viii. This Addendum may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute an original. The parties are permitted to sign and deliver this Addendum by facsimile or email transmission or through technology infrastructure that permits and accepts digital signatures.

EXHIBIT A: DETAILS OF PROCESSING SERVICES CONCERNING CUSTOMER’s PERSONAL DATA THAT ARE UNDERTAKEN BY COMPANY ON CUSTOMER’S BEHALF

In accordance with Article 28(3) of the GDPR, this Exhibit A contains certain details regarding the Processing of Customer’s Personal Data.

Subject Matter and Duration of the Processing Services Concerning Customer’s Personal Data

The subject matter and duration of the Processing Services that Company will undertake on Customer’s behalf are detailed in the Principal Agreement and this Addendum.

The Nature and Purposes of the Processing Services

Company will host and store Personal Data that is collected and inputted by Customer into Company’s learning services system, which Company will use only in accordance with the Principal Agreement and this Addendum.

Types of Customer’s Personal Data

First name, last name, email address

Categories of Data Subject to whom the Customer’s Personal Data relates

Customer’s employees, end-users and contractors

Obligations and Rights of Customer and

The obligations and rights of Company are set forth in the Principal Agreement and this Addendum.

EXHIBIT B: MODEL CLAUSES

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 data exporting organization: Customer, at the address and telephone number set forth on page one of the Principal Agreement (the data exporter)

And

Name of the data importing organization: Skillable

Address: 3617 Lonzalo Way, New Port Richey, FL 34655

Telephone number: (727) 505-5195 Fax Number: N/A

Email: arap@learnondemandsystems.com

Other information needed to identify the organization: N/A

(the data importer)

each a ‘party’; together ‘the parties’

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

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 organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

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

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the 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 organisational security measures specified in Appendix 2 to this contract;

d. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

e. that it will ensure compliance with the security measures;

f. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

g. to forward any notification received from the data importer or any 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 organisational security measures specified in Appendix 2 before processing the personal data transferred;

d. that it will promptly notify the data exporter about:

  1. 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;
  2. any accidental or unauthorised access; and 
  3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;


e. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

f. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

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

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

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

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

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 it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

a. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

b. to refer the dispute to the courts in the Member State in which the data exporter is established.

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

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.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data Exporter

The data exporter is (specify briefly your activities relevant to the transfer):

Providing employees, students, end users and contractors a platform to access online labs and courses

Data Importer

The data importer is (specify briefly activities relevant to the transfer):

Provider customer access to virtual machines and other services to allow access to online labs and content

Data subjects

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

Customer’s employees, students, end users and contractors

Categories of data

The personal data transferred concerns the following categories of data:

First name, last name and email address

Special Categories of data, if appropriate

The personal data transferred concerns the following special categories of data: N/A

Processing Operations

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

Storing and computing in accordance with the Principal Agreement.

Appendix 2

To the Standard Contractual Clauses

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

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Skillable has implemented an Information Security Program to help manage its data and information. Skillable conducts annual audits of its Information Security Program to ensure organizational compliance with its principles. As a matter of procedure, Skillable imposes both technical and Skillable measures to protect data, including the use of encryption when data is at rest on Skillable controlled systems. Skillable has also implemented access controls, limiting access to personal data to only those employees and contractors that require such access for purposes of carrying out their obligations as Skillable employees or contractors. Skillable personnel are contractually required to keep personal data confidential.

Liability

The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.

Indemnification is contingent upon:

the data exporter promptly notifying the data importer of a claim; and

the data importer being given the possibility to cooperate with the data exporter in the defense and settlement of the claim.