InfluxData Global Data Processing Agreement

Effective July 22, 2019

InfluxData Inc. and you (“Customer”) have entered into one or more Agreements, pursuant to which InfluxData and/or its Affiliates (collectively “InfluxData” or “Company”) may process Personal Data for purposes of providing Services (as defined below) to Customer. InfluxData agrees to process such Personal Data on Customer’s behalf as required by this Data Processing Addendum (“DPA”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

1. DEFINITIONS

1.1  “Affiliate(s)” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with a Party to this DPA. “Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” will be construed accordingly.

1.2  “Agreement” means the written or electronic agreement(s) between Customer and Company for the provision of the Services to Customer which reference this DPA.

1.3  “Applicable Law” means (a) Regulation (EU) 2016/679 (“GDPR”); (b) any other laws or regulations applicable to the processing of Personal Data in any region in which the Personal Data is transferred or processed; (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the foregoing; and (d) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.

1.4  “Data Subject Request” means a request from a Data Subject to exercise assorted “data subject rights” under Applicable Law, including but not limited to those data subject rights under Chapter 3 of the GDPR.

1.5  “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

1.6  “Personnel” means any personnel of Company who are authorized to process Personal Data under the authority of Company.

1.7  “Services” means the services provided by Company to Customer pursuant to the Agreement.

1.8  “Subprocessor” means any person or entity appointed by or on behalf of a Data Processor in connection with the processing of Personal Data in connection with the Agreement.

1.9  In this DPA, the following terms (and any substantially similar terms as defined under Applicable Law) shall have the meanings and otherwise be interpreted in accordance with Applicable Law: Data Controller, Data Processor, Data Subject, Personal Data, Service Provider, process(ing) and transfer.

2. SCOPE OF DPA AND DETAILS OF PROCESSING ACTIVITIES

2.1  Scope. This DPA applies where, and solely to the extent that, Company processes Personal Data on behalf of Customer for the purpose of providing the Services to the Customer pursuant to the Agreement (the “Business Purpose”). The subject-matter and duration of the processing, nature and purpose of the processing, type of Personal Data and categories of the Data Subjects are set out in Appendix 1 of Annex 1 (the Standard Contractual Clauses) attached hereto.

2.2  Role of the Parties. Under the GDPR, as between Company and Customer, Customer is the Data Controller of the Personal Data and Company is the Data Processor of the Personal Data, except where Customer is the Data Processor of the Personal Data, in which case Company is a subprocessor of Customer with respect to the Personal Data. Under the California Consumer Privacy Act of 2018, Company is a Service Provider for Customer.

3. PROCESSING OF PERSONAL DATA

3.1  Instructions. Customer instructs Company (and authorizes Company to instruct its Personnel and Subprocessors) to process (including internationally transfer) Personal Data for the Business Purpose and in a manner consistent with the Agreement, this DPA and Applicable Law (the ” Instructions”). Company shall not retain, use or disclose the Personal Data for any purpose other than the Business Purpose or as otherwise expressly permitted by Customer or Applicable Law. The parties agree that the Customer’s complete and final Instructions with regard to the nature and purposes of the processing are set out in the Agreement and this DPA. Processing outside the scope of these Instructions (if any) will require prior written agreement between Customer and Company.

3.2  Company’s Obligations. Company shall promptly inform Customer if, in its reasonable opinion, the Instructions violate Applicable Law. Company will notify Customer in the unlikely event that Applicable Law requires Company to process Personal Data other than pursuant to the Instructions.

4. INTERNATIONAL TRANSFER OF PERSONAL DATA

4.1  General Authorization to International Transfer. Customer acknowledges and agrees that Company and its Subprocessors may provide the Services from any state, province, country or other jurisdiction. Company and its Subprocessors may transfer and process Personal Data anywhere in the world where Company or its Subprocessors maintain data processing operations. Company will at all times provide an adequate level of protection for the Personal Data processed, in accordance with the requirements of Applicable Law.

4.2  Standard Contractual Clauses. In the event that (1) the GDPR applies to Company’s processing under this DPA; and (2) Company’s processing under this DPA involves the transfer of Personal Data out of the EEA to any country that is not deemed to provide adequate protection within the meaning of the GDPR) the parties agree that:

  1. In the event that Company has self-certified to the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks, such transfers of Personal Data from the EEA to the United States will be effectuated in accordance with the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks and Principles as issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework (collectively the “Privacy Shield Framework”) and Company shall comply -with the Privacy Shield Framework in its performance under this DPA; or
  2. Where the Privacy Shield Framework is not applicable to the intended transfer, Company has not self-certified to the Privacy Shield Framework, or the Privacy Shield Framework has been invalidated by Applicable Law, such transfers shall be effectuated by means of the standard contractual clauses (“SCCs”) as set out in Annex 1. The parties agree that Company will comply with the obligations of the ‘data importer’ in the SCCs and Customer will comply with the obligations of ‘data exporter’. Customer agrees that Customer rights regarding Company subprocessing under the SCCs are subject to Sections 5.3 and 5.4 of this DPA. Customer agrees that Customer’s right of audit under clause 5.1(f) of the SCCs are subject to Section 9.1 of this DPA. For the sake of clarity, if and to the extent that the SCCs apply, signatures of assent of Company and Customer to this DPA will be deemed signatures to the SCCs.

5. COMPANY PERSONNEL AND SUBPROCESSORS

5.1  Instructions. Company shall require Company’s Subprocessors and Personnel to process Personal Data solely in accordance with the Instructions, unless otherwise required by Applicable Law (in which case Company shall notify the Customer).

5.2  Confidentiality. Company may disclose or transfer Personal Data to Company Personnel and Subprocessors solely for the Business Purpose. Company shall ensure that Company’s Subprocessors and Personnel are subject to confidentiality obligations in accordance with the Agreement.

5.3  General Authorization to Subprocess. Customer agrees that Company may engage Subprocessors for the processing of Personal Data for the Business Purpose. A list of Company’s current Subprocessors (the “InfluxData Services Subprocessor List”) is available at: www.influxdata.com/legal (such URL may be updated by Company from time to time). Company will provide reasonable prior notice on the InfluxData Services Subprocessor List and via email to Customer if it intends to make any changes concerning the addition or replacement of any Subprocessors. If within five (5) business days of recipient of such notice, Customer objects, in writing, to Company’s appointment of a new Subprocessor, provided that such objection is based on reasonable grounds relating to data protection, the parties will discuss such concerns in good faith with a goal of achieving resolution.

5.4  Company’s Obligations. Company shall ensure that all Subprocessors are bound by written agreements which are no less protective of the Personal Data than this DPA (including with respect to subprocessing by Subprocessors). Company will remain liable for any breach of its obligations under this DPA that is caused by an act or omission of a Subprocessor.

6. DATA SUBJECT REQUESTS.

6.1  Data Subject Requests. At Customer’s expense and solely as required by Applicable Law, Company shall provide Customer with commercially reasonable cooperation and assistance in fulfilling Customer’s obligations to respond to Data Subject Requests.

7. CONFIDENTIALITY AND DATA RETENTION

7.1  Confidentiality. Company will not disclose or transfer Personal Data to any third-party without the prior written consent of Customer except as required by Applicable Law, regulation or public authority or as otherwise permitted by this DPA or the Agreement.

7.2  Legally Compelled Disclosure. If a law enforcement agency sends Company a demand for Personal Data (for example, through a subpoena or court order), Company will attempt to redirect the law enforcement agency to request such Personal Data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Personal Data to a law enforcement agency, then Company will (as legally permissible) give Customer reasonable notice of the demand to allow Customer to seek a protective order or another appropriate remedy.

7.3 . Return of Personal Data. On expiration or termination of the Agreement, and in accordance with Applicable Law and Company’s internal data retention schedule, Company shall delete or return Personal Data in its possession or control. This requirement shall not apply to Personal Data which Company has archived on back-up systems, which Company shall continue to protect in accordance with the Agreement and this DPA.

8. SECURITY AND PERSONAL DATA BREACHES

8.1  Security Measures. Taking into account the state of the art, the 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, Company shall, in relation to the Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

8.2  Personal Data Breach. Company shall notify Customer without undue delay upon Company becoming aware of a Personal Data Breach. In the event of a Personal Data Breach, Company will provide Customer with sufficient information, as it becomes known to Company, to meet Company’s obligations under Article 33(3) of the GDPR or as otherwise required under Applicable Law. Company’s obligation to report or respond to a Personal Data Breach under this Section is not and will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.

8.3  Cooperation. At Customer’s expense and solely as required by Applicable Law, Company will comply with Customer’s reasonable requests to assist Customer in meeting Customer’s obligations under Articles 32 – 36 of the GDPR.

9. AUDITS AND RECORDS

9.1  To the extent required by Applicable Law, Company shall make available to Customer the information in Company’s control which is necessary to demonstrate Customer’s compliance with Applicable Law. At the request of Customer, and no more than once a year, Company shall submit the data-processing facilities in Company’s control for an audit of the processing activities covered by this DPA. Audits shall be carried out by Customer or by third party auditors who are bound by a duty of confidentiality.

10. CUSTOMER REPRESENTATIONS AND WARRANTIES

10.1  Customer represents and warrants that Customer (including, as applicable, its personnel and Affiliates):

    • a)  will at all times comply with Applicable Law in its performance under the Agreement and this DPA;
    • b)  will remain duly and effectively authorized to give the Instructions set out in the Agreement, this DPA or as Customer otherwise provides;
    • c)  has provided notice and obtained (or will obtain) all permissions, consents and rights necessary for Company to transfer and process Personal Data pursuant to the Agreement and this DPA; and
    • d)  will respond promptly to enquiries regarding the Personal Data and will notify Company promptly of such enquiries.

11. LIMITATION OF LIABILITY

11.1  InfluxData’s liability arising out of or related to this DPA (including under the SCCs), whether in contract, tort or under any other theory of liability, is subject to the limitations and exclusions of liability contained in the underlying Agreement. Nothing in this Agreement will limit Company’s liability with respect to bodily injury or death or any other liability or loss which may not be limited by the Agreement under Applicable Law.

12. MISCELLANEOUS

12.1  This DPA is expressly incorporated into and amends each of the Agreements.

12.2  This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Applicable Law. This DPA constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.This DPA is without prejudice to the rights and obligations of the parties under the Agreement which will continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Agreement, the terms of this DPA will prevail so far as the subject matter concerns the processing of Personal Data.

12.3  In the event of any conflict or inconsistency between the terms of this DPA and the Agreements, on the one hand, and the terms of any framework or data transfer agreement entered into pursuant to Section 4.2 herein, the terms of such framework or data transfer agreement prevail.

12.4  This DPA sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it. Other than in respect of statements made fraudulently, no other representations or terms will apply or form part of this DPA.

12.5  A person who is not a party to this DPA will not have any rights under this DPA (including under the Contracts (Rights of Third Parties) Act 1999) to enforce any term of this DPA.

12.6  No one other than a party to this DPA, their successors and permitted assignees shall have any right to enforce any of its terms, unless required otherwise by Applicable Law.

12.7  Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

12.8  The provisions of this DPA are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of this DPA shall remain in full force and effect.

ANNEX 1: STANDARD CONTRACTUAL CLAUSES

Standard Contractual Clauses (processors)

The Customer entity that is a party to the DPA to which these Standard Contractual Clauses are attached (“data exporter”) and Company (“data importer”) 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 international transfer of personal data by the data exporter to the data importer of the personal data specified in Appendix 1.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to the data importer. Data importer and/or its Subprocessors may provide the services from a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the data exporter agrees to the provision of such services, including the processing and international transfer of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

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; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]

(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; [If these Clauses are not governed by the law of a Member State, the words “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” are deleted.]

(d)the subprocessor‘ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e)the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

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

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 subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

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; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

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

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

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:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(ii) any accidental or unauthorised access, and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

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

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

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

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

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

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

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

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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

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

Subprocessing
  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

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 subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

Data exporter:
The data exporter is: Customer

Data importer:
The data importer is: InfluxData Inc. and its affiliates

Data subjects:
The personal data transferred concern the following categories of data subjects: Data exporter’s, its affiliates, and its and their service providers’, employees, consultants, agents and representatives authorized by data exporter to use the Services.

Categories of data:
Data exporter may submit Personal Data to data importer, and which may include, but is not limited to the following categories of personal data: (a) First and last name; (b) Title; (c) Position; (d) Employer; (e) Contact information (company, email, phone, physical business address); (f) IP address; (g) any other Personal Data data exporter chooses to provide to the Services in accordance with the Agreement.

Special categories of data (if appropriate):
N/A

Processing operations
The objective of the processing of Personal Data by data importer is the performance of the contractual services related to the Agreement with the data exporter. The processes may include collection, storage, retrieval, consultation, use, erasure or destruction, disclosure by transmission, dissemination or otherwise making available data exporter’s Personal Data as necessary to provide the Services to data importer in accordance with the data exporter’s instructions and Applicable Law.

Appendix 2 to the Standard Contractual Clauses

Taking into account the state of the art, the 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, Company shall, in relation to the Personal Data, implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

Without limiting the foregoing, such technical and organizational security measures include, as appropriate:

  1. Encryption (to the extent technically feasible) of all transmitted records and files containing personal information that will travel across public networks, and encryption of all data to be transmitted wirelessly;
  2. Implementation of reasonable monitoring of systems for unauthorized use of or access to personal information;
  3. Use of secure user authentication protocols;
  4. Regular training and education of Company employees on the proper use of the computer security system and the importance of personal information security; and
  5. Minimization of Personal Data collection.

Company will regularly test, assess and evaluate the effectiveness of its technical and organizational security measures to ensure the secure Processing of Company Personal Data. From time to time, Company may provide Customer with additional information about Company’s security practices.

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