This Data Processing Addendum ("Addendum") is executed and entered into between: (i) Samsung Electronics Co.,Ltd. ("SAMSUNG") acting on its own behalf and as agent for each Samsung Affiliate; and (ii) you or your mandator, with the principal place of business located at address ("Company") acting on its own behalf and as agent for each Company Affiliate.
1. Definitions
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 "Applicable Laws" means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws, including without limitation the California Consumer Privacy Act of 2018, Cal. Civil Code section 1798.100 et seq. ("CCPA");
1.1.2 "Company Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.3 "Company Group Member" means Company or any Company Affiliate;
1.1.4 "Company Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
1.1.5 "Contracted Processor" means SAMSUNG and/or a Subprocessor;
1.1.6 "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 "EEA" means the European Economic Area;
1.1.8 "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.9 "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.10 "Restricted Transfer" means:
1.1.10.1 a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or
1.1.10.2 an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,in each case, where such transfer would be prohibited by Data Protection Laws or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws in the absence of the Standard Contractual Clauses to be established under section 12 below;
1.1.11 "Services" means the services and other activities to be supplied to or carried out by or on behalf of SAMSUNG for Company Group Members pursuant to the Principal Agreement;
1.1.12 "Standard Contractual Clauses" means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 14.4;
1.1.13 "Subprocessor" means any person including any third party and any SAMSUNG Affiliate, but excluding an employee of SAMSUNG or any of its sub-contractors appointed by or on behalf of SAMSUNG or any SAMSUNG Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and
1.1.14 "SAMSUNG Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with SAMSUNG, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
1.2 The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
SAMSUNG warrants and represents that, before any SAMSUNG Affiliate Processes any Company Personal Data on behalf of any Company Group Member, SAMSUNG's entry into this Addendum as agent for and on behalf of that SAMSUNG Affiliate will have been duly and effectively authorised by that SAMSUNG Affiliate.
3.1 SAMSUNG and each SAMSUNG Affiliate shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
3.1.2 not Process Company Personal Data other than on the relevant Company Group Member's documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case SAMSUNG or the relevant SAMSUNG Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Company Group Member:
3.2.1 instructs SAMSUNG and each SAMSUNG Affiliate and authorises SAMSUNG and each SAMSUNG Affiliate to instruct each Subprocessor to:
3.2.1.1 Process Company Personal Data; and
3.2.1.2 in particular, transfer Company Personal Data to any country or territory,
as reasonably related for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Company Affiliate.
3.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Company Personal Data as required by article 28(3) of the GDPR and, possibly, equivalent requirements of other Data Protection Laws. Company may make reasonable amendments to Annex 1 by written notice to SAMSUNG from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 including as amended pursuant to this section 3.3 confers any right or imposes any obligation on any party to this Addendum.
SAMSUNG and each SAMSUNG Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know/access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5.1 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, SAMSUNG and each SAMSUNG Affiliate shall in relation to the Company 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.
5.2 In assessing the appropriate level of security, SAMSUNG and each SAMSUNG Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6.1 Each Company Group Member authorises SAMSUNG and each SAMSUNG Affiliate to appoint and permit each Subprocessor appointed in accordance with this section 6 to appoint Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
6.2 SAMSUNG and each SAMSUNG Affiliate may continue to use those Subprocessors already engaged by SAMSUNG or any SAMSUNG Affiliate as at the date of this Addendum, subject to SAMSUNG and each SAMSUNG Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.
6.3 SAMSUNG shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 14 calendar days of receipt of that notice, Company notifies SAMSUNG in writing of any objections on reasonable grounds related to data protection or privacy to the proposed appointment, neither SAMSUNG nor any SAMSUNG Affiliate shall appoint or disclose any Company Personal Data to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Company Group Member and Company has been provided with a reasonable written explanation of the steps taken.
6.4 With respect to each Subprocessor, SAMSUNG or the relevant SAMSUNG Affiliate shall:
6.4.1 before the Subprocessor first Processes Company Personal Data or, where relevant, in accordance with section 6.2, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the Principal Agreement;
6.4.2 ensure that the arrangement between on the one hand (a) SAMSUNG, or (b) the relevant SAMSUNG Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
6.4.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) SAMSUNG, or (b) the relevant SAMSUNG Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Company Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s) and Company shall procure that each Company Affiliate party to any such Standard Contractual Clauses co-operates with their population and execution; and
7.1 Taking into account the nature of the Processing, SAMSUNG and each SAMSUNG Affiliate shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members' obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 SAMSUNG shall:
7.2.1 without undue delay notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case SAMSUNG shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
8.1 SAMSUNG shall notify Company without undue delay upon SAMSUNG or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 SAMSUNG shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as is necessary and are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
SAMSUNG and each SAMSUNG Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10.1 Subject to sections 10.2 and 10.3 SAMSUNG and each SAMSUNG Affiliate shall promptly and in any event within 90 calendar days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.
10.2 Subject to section 10.3, Company may in its absolute discretion by written notice to SAMSUNG within 30 calendar days of the Cessation Date require SAMSUNG and each SAMSUNG Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is possible and reasonably notified by Company to SAMSUNG; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. SAMSUNG and each SAMSUNG Affiliate shall comply with any such written request within 90 calendar days of the Cessation Date.
10.3 Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that SAMSUNG and each SAMSUNG Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
11.1 SAMSUNG and each SAMSUNG Affiliate shall make a commercially reasonable efforts to provide to each Company Group Member on request all information necessary to demonstrate compliance with Article 28 of the GDPR, when a Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,
11.2 SAMSUNG and each SAMSUNG Affiliate acknowledges and agrees that Company shall have the right, at any time once per calendar year during the term of the Agreement, including any renewal thereof, to request that SAMSUNG engage a third party, such third party to be mutually agreed upon by Company and SAMSUNG, to conduct an independent audit, such audit at Company's sole cost and expense, of SAMSUNG's privacy and security practices, and SAMSUNG shall comply with such request. Any results or reports from any such audits will be deemed SAMSUNG's confidential information.
11.3 SAMSUNG and each SAMSUNG Affiliate may object in writing to an auditor appointed by Company with respect to any audit if the auditor is, in SAMSUNG's reasonable opinion, not suitably qualified or independent, a competitor of SAMSUNG, or otherwise manifestly unsuitable. Any such objection by SAMSUNG will require Company to appoint another auditor. SAMSUNG may reject unreasonable requirements from Company.
12.1 Subject to section 12.3, each Company Group Member (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
12.2.1 the data exporter becoming a party to them;
12.2.2 the data importer becoming a party to them; and
12.2.3 commencement of the relevant Restricted Transfer.
12.3 Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps which, for the avoidance of doubt, do not include obtaining consents from Data Subjects, is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12.4 SAMSUNG warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a SAMSUNG Affiliate, SAMSUNG's or the relevant SAMSUNG Affiliate's entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 14.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorised or subsequently ratified by that Subprocessor.
For any Personal Data on which the CCPA applies ("CCPA Personal Data"), Samsung represents, warrants and hereby certifies that:
Samsung shall comply with all applicable provisions of the CCPA.
Samsung is acting solely as a Service Provider, as defined in the CCPA, with respect to CCPA Personal
Data.
Samsung shall not (1) Sell (as defined in the CCPA) CCPA Personal Data, or (2) retain, use or disclose CCPA
Personal Data (i) for any purpose other than for the specific purpose of performing the Services, or (ii)
outside of the direct business relationship between Company and Samsung.
The Parties acknowledge and agree as follows:
The CCPA Personal Data that Company discloses to Samsung is provided to Samsung for a business purpose, as defined in the CCPA, and Company does not Sell Personal Data to Samsung in connection with the Agreement. Additionally, Samsung shall not Sell any Personal Data to any third parties (as defined in the CCPA).
14.1 The term of this Addendum shall commence as of date this Addendum was signed and continue in full force and effect for a period of one (1) year. Upon the expiration of the original term or any renewal term, this Addendum shall be automatically renewed for a one (1) year period unless, at least sixty (60) days prior to the renewal date, either party gives the other party written notice of its intent not to continue the relationship.
14.2 This Addendum shall be governed by and construed in accordance with the laws of the Republic of Korea without regards to conflicts of laws provisions. Any legal action or proceeding arising out of or relating to this Addendum may be instituted in the courts of the Republic of Korea, and the parties hereto irrevocably submit to the jurisdiction of each such court in any action or proceeding. the country or territory stipulated for this purpose in the Principal Agreement.
14.3 With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, the provisions of this Addendum shall prevail.
14.4 Company may:
14.4.1 by at least 60 (sixty) calendar days' written notice to SAMSUNG from time to time make any variations to the Standard Contractual Clauses including any Standard Contractual Clauses entered into under section 12.1, as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made or continue to be made without breach of that Data Protection Law; and
14.4.2 propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
14.5 If Company gives notice under section 14.4.1:
14.5.1 SAMSUNG and each SAMSUNG Affiliate shall promptly co-operate and ensure that any affected Subprocessors promptly co-operate to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and
14.5.2 Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by SAMSUNG to protect the Contracted Processors against additional risks associated with the variations made under section 14.4.1 and/or 14.5.1.
14.6 If Company gives notice under section 14.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company's notice as soon as is reasonably practicable.
14.7 Neither Company nor SAMSUNG shall require the consent or approval of any Company Affiliate or SAMSUNG Affiliate to amend this Addendum pursuant to this section 14.5 or otherwise.
14.8 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties' intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.
The individual signing this Addendum directly and expressly represents and warrants that he/she has been given and has received and accepted authority to sign and execute this Addendum on behalf of Company and to legally bind Company to this Addendum, and further by electronically signing this Addendum Company shall be bound by the terms and conditions contained in this Addendum.
This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
1. Categories of Personal Data
The Personal Data concern the following categories of Personal Data:
(1) Personal information of B2B TV user: First name, Last name, Nationality, Language and Title(Sex)
(2) Room information of B2B TV user: Room number, Check-in date & time, Check-out date & time, Room change date & time, Previous room number (in the event of room change during the check-in) and Room Status
(3) Purchasing information of B2B TV user: Store code, Item amount, Item description, Balance amount and Purchasing date & time
(4) B2B TV Device Data: Serial number, Device ID (HW & SW DUID), AWS device ARN, MAC address, Model name, Device name, Samsung account of B2B TV manager, Device group ID, Deployed content name, IP address, Installed apps and Installed location
(5) B2B TV Usage histories of following items: TV on/off time, Smart service, TV Plus service, Screen mirroring and Ambient mode
(6) B2B TV Hotel contents data: Accessed page, Client Session ID, Event, Content manager ID, Content URL, Content name and Thumb nail image & size
(7) B2B TV Viewing history: Channel name, Genre, Viewing time, Program name and Channel source type
2. Categories of data subjects
The Personal Data concern the following categories of individuals:
The data subjects include existing and prospective B2B TV user and employees of the Company.
3. Purposes of the data processing
The Personal Data will be processed for the following purposes:
The Personal Data will be processed for the purposes of operation, development, administration and maintenance of the SAMSUNG LYNK Cloud Service to Company.
4. Processing activities
The Personal Data will be subject to the following processing activities:
SAMSUNG LYNK Cloud uses the following hardware and software for data processing:
All Hardware and software are configured and operated on an AWS (Amazon Web Service) basis.
(1) Hardware: Using virtual hardware services (EC2) based on AWS services
(2) Software: Web server for web service, service server and database server
(3) Data Centre: Data centres can be configured according to the various revisions provided by AWS and currently located in the USA and Europe.
Each data processing phase takes place within the same AWS revision, and there is no further transition of data.
5. Recipients of the Personal Data
The Personal Data may only be disclosed to the following recipients:
- Samsung's authorized personnel who have a reasonable need to know the information in order to fulfil the purposes of the Agreement; and
- Any other third parties consistent with this Addendum and Applicable Laws
6. Retention periods
Subject to applicable laws:
(1) Personal information data shall be deleted immediately upon check-out
(2) Room information data:
1) Room number and Previous room number shall be deleted immediately upon check-out
2) Other information shall be deleted immediately upon service withdrawal or one year after data collection
(3) Purchasing information shall be deleted immediately upon service withdrawal or one year after data collection
(4) B2B TV Device data shall be deleted immediately upon service withdrawal.
(5) B2B TV Usage history shall be deleted immediately upon service withdrawal or one year after data collection
(6) B2B TV Hotel contents data:
1) Accessed page, Client Session ID and Event shall be deleted immediately upon service withdrawal or one year after data collection
2) Other information shall be deleted immediately upon service withdrawal.
(7) B2B TV Viewing history shall be deleted immediately upon service withdrawal or one year after data collection
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
The entity identified as "Company" in the Addendum
(the data exporter)
And
Name of the data importing organisation: Samsung Electronics Co., Ltd.Address: 129 Samsung-ro, Yeongtong-gu, Suwon-si, Gyeonggi-do, 16677, Koreae-mail: b2bportal@samsung.com
Other information needed to identify the organisation:
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
(the data importer)
each a "party"; together "the parties",
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
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 data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing 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.
Other information necessary in order for the contract to be binding (if any):
Other information necessary in order for the contract to be binding (if any):
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 the entity identified as "Company" in the DPA
Data importer
The data importer is Samsung Electronics Co.,Ltd.
Data subjects
The personal data transferred concern the following categories of data subjects:
As described in Annex 1 Section 2 of the Data Processing Addendum entered into by the parties
Categories of data
The personal data transferred concern the following categories of data:
As described in Annex 1 Section 1 of the Data Processing Addendum entered into by the parties
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
N/A
Processing operations
The personal data transferred will be subject to the following basic processing activities:
As described in Annex 1 Section 3 and 4 of the Data Processing Addendum entered into by the parties
Name: _______________________________
Authorised Signature: _______________________________
Name: _______________________________
Authorised Signature: _______________________________
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Technical and Organisational Security Measures
1. Access control (physical access control and data access control)
SAMSUNG shall take measures to prevent unauthorised persons from gaining physical access to data processing facilities used for processing Personal Data and to guarantee that authorised persons when using an automated data processing system may only access Personal Data that are within their competence.
2. Control of use
SAMSUNG shall take measures to prevent unauthorised persons from using the data processing facilities and processes.
3. Control of data transmission
SAMSUNG shall take measures to ensure that Personal Data cannot be read, copied, amended or deleted during their transmission, transport or storage on data carriers, and to allow checks to determine which recipients are entitled to receive Personal Data by data transmission facilities.
4. Input control
SAMSUNG shall take measures to allow subsequent checks to determine whether and by whom Personal Data has been entered, amended or deleted in data processing systems.
5. Availability control
SAMSUNG shall take measures to ensure that Personal Data is protected against accidental destruction or loss.
6. Separation control
SAMSUNG shall take measures to ensure that Personal Data collected for different purposes can be processed separately.
7. Compliance with instructions
SAMSUNG shall ensure that commissioned data processing is carried out in accordance with Company's instructions.
8. Media
SAMSUNG shall ensure that any media containing Personal Data permit the identification, inventorying and storing of Personal Data at a location with access restricted to authorised personnel. Data media handed over by Company and any copies or reproductions produced of them remain the property of Company.
9. Testing
SAMSUNG shall ensure that the security measures implemented in accordance with this Exhibit are regularly tested, assessed and evaluated in terms of their effectiveness in securing Personal Data.