CAST AI Group, Inc.
Customer Data Processing Addendum
Effective Date: Feb 21, 2023
Customer Data Processing Addendum
This Customer Data Processing Addendum (“DPA”) forms part of the Terms of Service (“Agreement”) between CAST AI and Customer and shall be effective on the date Customer first begins using the CAST AI Cloud Services. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Unless clearly stated otherwise, references to “Sections” in this Schedule A refer to sections of this Schedule A.
With respect to the Processing of Personal Data, the parties agree as follows:
1. Definitions. As used in this DPA:
1.1. “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq.
1.2. “Data Breach” means any breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data Processed by CAST AI or a Sub-processor.
1.3. “Data Controller” means an entity that determines the purposes and means of the Processing of Personal Data.
1.4. “Data Processor” means an entity that Processes Personal Data on behalf of a Data Controller.
1.5. “Data Protection Laws” means all data protection and privacy laws applicable to the Processing of Personal Data under this DPA, including, where applicable, GDPR and CCPA.
1.6. “EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.
1.7. “GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and any member state law implementing the same.
1.8. “Personal Data” means any information relating to an identified or identifiable natural person that is included in Customer Inputs and that, CAST AI Processes on behalf of Customer as a Data Processor in the course of providing the Services (as defined herein).
1.9. “Processing” has the meaning given to it in the GDPR and “process,” “processes” and “processed” shall be interpreted accordingly.
1.10. “Standard Contractual Clauses” means Annex 1, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
1.11. “Sub-processor” means any Data Processor engaged by CAST AI to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA.
2. Relationship with the Agreement.
2.1. The parties agree that this DPA shall replace any existing DPA or other contractual provisions pertaining to the subject matter contained herein the parties may have previously entered into in connection with Services.
2.2. If there is any conflict between this DPA and the Agreement, this DPA shall prevail.
2.3. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Customer shall indemnify CAST AI as applicable against any and all such claims or costs of any kind that exceed the exclusions and limitations set forth in the Agreement.
2.4. Except as may be otherwise provided pursuant to CAST AI’s compliance with applicable data transfer mechanisms in Section 10, no one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.5. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Roles of the Parties; Processing of Personal Data by Customer and CAST AI.
3.1. As between CAST AI and Customer, Customer is the Data Controller of Personal Data and CAST AI is the Data Processor of Personal Data. CAST AI shall Process Personal Data only as a Data Processor acting at Customer’s direction. CAST AI shall not retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the Services as described in the Agreement and this DPA, including retaining, using, or disclosing Personal Data for a commercial purpose other than providing the Services.
3.2. Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its Processing of Personal Data and any Processing instructions it issues to CAST AI; and (ii) it has provided notice and obtained all consents and rights necessary under Data Protection Laws for CAST AI to Process Personal Data and provide the products and services described in the Agreement and any Order Form or Schedule, including CAST AI Analytics, CAST AI Cloud Services, Customer use of CAST AI Technology, and professional services (if any) (collectively “Services”). Customer shall immediately notify CAST AI and cease Processing Personal Data in the event any required authorization or legal basis for Processing is revoked or terminates.
3.3. CAST AI shall Process Personal Data only to provide the Services and for the purposes described in the Agreement or otherwise in accordance with Customer’s documented and agreed-upon lawful instructions unless Processing is required by applicable law, in which case CAST AI shall to the extent permitted by applicable laws inform Customer of that legal requirement before the relevant Processing.
3.4. Notwithstanding anything to the contrary in the Agreement or this DPA, Customer acknowledges that CAST AI shall have a right to use and disclose data relating to Users and other Customer personnel and/or that is obtained in connection with the operation, support and/or use of the Services for its own legitimate purposes relating to the operation, support and/or use of the CAST AI Cloud Services, CAST AI Analytics, and CAST AI Technology, such as billing, account management, technical support, product development, and sales and marketing. To the extent any such data is considered personal data under the Data Protection Laws, CAST AI is the Data Controller of such data and accordingly shall Process such data in compliance with applicable Data Protection Laws.
4. Details of Processing of Personal Data.
4.1. The subject matter and duration of the Processing of the Personal Data are described in the Agreement and this DPA. The nature and purpose of the Processing of Personal Data is providing the Services.
4.2. The types of Personal Data that may be processed are determined by Customer and may include contact information, such as email address, phone number, social media identifiers, and postal or physical address; device information, such as device identifiers; and professional information, such as job function, title, and employee identification number. Other Personal Data may be submitted as reasonably necessary for Customer to receive or use Services, but in no case shall such Personal Data include sensitive or special categories of Personal Data.
4.3. The Processing of Personal Data pursuant to this DPA will pertain to individuals including employees and contractors of Customer, including those who are authorized to use CAST AI Cloud Services and current and prospective customers and business partners of Customer. The obligations and rights of Customer and CAST AI and the duration of Processing are set forth in the Agreement and this DPA.
5. Data Security. Each party shall take appropriate technical and organizational measures against unauthorized or unlawful Processing of Personal Data or its accidental loss, destruction, or damage. CAST AI shall implement and maintain commercially reasonable technical and organizational security measures designed to protect Personal Data from Data Breaches, to help ensure the ongoing confidentiality, integrity, and availability of the Personal Data and Processing systems, in accordance with CAST AI’s security standards, including, as appropriate, the measures referred to in Article 32 of the GDPR. Notwithstanding the above, Customer agrees that it is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Personal Data when in transit, and taking any appropriate steps to securely encrypt or backup Personal Data, as well as the security obligations outlined in the Agreement.
6. Data Breach Response. CAST AI shall notify Customer without undue delay after becoming aware of any Data Breach. CAST AI shall make reasonable efforts to identify the cause of the Data Breach and shall undertake such steps as CAST AI deems necessary and reasonable in order to remediate the cause of such Data Breach. CAST AI shall provide information related to the Data Breach to Customer in a timely fashion and as reasonably necessary for Customer to maintain compliance with EEA Data Protection Laws. The obligations herein shall not apply to incidents that are caused by Customer, including Customer’s employees, subcontractors, or agents.
7. Confidentiality of Data Processing. CAST AI shall ensure that any person who is authorized by CAST AI to Process Personal Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality.
8. Return or Deletion of Data. Upon termination or expiration of the Agreement, CAST AI shall (at Customer’s election) delete or return, if feasible, to Customer all Personal Data remaining in its possession or control, save that this requirement shall not apply: (i) to the extent CAST AI is required by applicable law to retain some or all of the Personal Data; (ii) if CAST AI is Processing the Personal Data on behalf of a co-Data Controller; (iii) if CAST AI is reasonably required to retain some or all of the Personal Data for limited operational and compliance purposes; or (iv) to Personal Data CAST AI has archived on back-up systems. In all such cases, CAST AI shall maintain the Personal Data securely and limit Processing to the purposes that prevent deletion or return of the Personal Data. The terms of this DPA shall survive for so long as CAST AI continues to retain any Personal Data.
9. Sub-processing. Customer agrees that this DPA constitutes Customer’s written authorization for CAST AI to engage Sub-processors to Process Personal Data on Customer’s behalf, including the Sub-processors currently engaged by CAST AI. CAST AI shall: (i) take commercially reasonable measures to ensure that Sub-processors have the requisite capabilities to Process Personal Data in accordance with this DPA; (ii) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; (iii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause CAST AI to breach any of its obligations under this DPA; and (iv) notify Customer in the event that it intends to engage different or additional Sub-processors that will Process Personal Data pursuant to this DPA, which may be done by email or posting on a website identified by CAST AI to Customer, Customer must raise any objection to posted Sub-processors within five (5) calendar days of the posted update. Customer’s objection shall only be effective if submitted to CAST AI in writing, specifically describing Customer’s reasonable belief that CAST AI’s proposed use of the Sub-processor(s) will materially, adversely affect Customer’s compliance with GDPR. In any such case, the parties will make reasonable efforts to reconcile the matter. In the event Customer’s concern cannot be resolved, CAST AI may terminate the Agreement with no penalty and Customer shall immediately pay all fees and costs then owing and incurred by CAST AI as a result of termination.
10. International Transfers.
10.1. CAST AI may Process Personal Data anywhere in the world where CAST AI or its Sub-processors maintain data Processing operations. CAST AI shall at all times provide an adequate level of protection for the Personal Data Processed, in accordance with the requirements of Data Protection Laws.
10.2. To the extent performance of the Services requires the transfer of Personal Data from within the EEA to a country outside the EEA not recognized by the European Commission as providing an adequate level of protection for Personal Data (as described in the GDPR), the Standard Contractual Clauses will apply to the transfer.
11. Data Protection Authority Inquiries. CAST AI shall (at Customer’s expense) provide commercially reasonable cooperation to assist Customer in its response to any requests from data protection authorities with authority relating to the Processing of Personal Data under the Agreement and this DPA. In the event that any such request is made directly to CAST AI, CAST AI shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If CAST AI is required to respond to such a request, CAST AI shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
12. Individual Rights and Requests. To the extent Customer does not have the ability to independently correct, amend, or delete Personal Data, or block or restrict Processing of Personal Data, then at Customer’s written direction and to the extent required by Data Protection Laws, CAST AI shall comply with any commercially reasonable request by Customer to facilitate such actions. To the extent legally permitted, Customer shall be responsible for any costs arising from CAST AI’s or its Sub-processors’ provision of such assistance. CAST AI shall, to the extent legally permitted, promptly notify Customer if it receives a request from an individual data subject for access to, correction, amendment or deletion of that person’s Personal Data, or a request to restrict Processing. CAST AI shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a data subject’s request, to the extent legally permitted and to the extent Customer does not have the ability to address the request independently. To the extent legally permitted, Customer shall be responsible for any costs arising from CAST AI’s provision of such assistance.
13. Assessments and Data Protection Impact Assessments. CAST AI shall provide written responses (on a confidential basis) to all commercially reasonable requests for information made by Customer regarding Processing of Personal Data, including responses to information security reviews, that are necessary to confirm CAST AI’s compliance with this DPA. CAST AI shall cooperate with audits and inspections performed by Customer or a vendor of Customer reasonably acceptable to CAST AI that are necessary to confirm CAST AI’s compliance with this DPA, provided however, that any such on-site audit or inspection: (i) may not be performed unless necessary to determine CAST AI’s compliance with this DPA and Customer reasonably believes that CAST AI is not complying with this DPA; (ii) must be conducted at Customer’s sole expense and subject to reasonable fees and costs charged by CAST AI; (iii) conducted at a date and time and for a duration mutually agreed by the parties; and (v) must be performed in a manner that does not cause any damage, injury, or disruption to CAST AI’s premises, equipment, personnel, or business. Notwithstanding the foregoing, CAST AI will not be required to disclose any proprietary or privileged information to Customer or an agent or vendor of Customer. Customer shall not exercise its rights under this Section more than once per year, including with respect to any support required to perform a data protection impact assessment.
14. Law Enforcement Requests. If a law enforcement agency sends CAST AI a demand for Personal Data (for example, through a subpoena or court order), CAST AI may attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, CAST AI may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Personal Data to a law enforcement agency, then CAST AI shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless CAST AI is legally prohibited from doing so.
15. Customer Obligations. Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to CAST AI so that CAST AI may lawfully use, process, and transfer the Personal Data in accordance with the Agreement on the Customer’s behalf. The Customer shall not provide to CAST AI any “Sensitive Personal Data” as defined by GDPR and any national laws adopted pursuant to GDPR, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission of any crime or offense. Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by any applicable Data Protection Law and acknowledges that CAST AI is reliant on Customer for direction as to the extent to which CAST AI is entitled to use and process the Personal Data. Consequently, and without limiting any limitations of liability or Customer’s indemnification obligations under the Agreement, CAST AI will not be liable for any claim brought against CAST AI arising from any action or omission by CAST AI to the extent that such action or omission resulted directly from Customer’s instructions and/or any failure of Customer to comply with this DPA.
SCHEDULE A – ANNEX 1
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
The entity identified as “Customer” in the DPA (the “data exporter”)
Cast AI Group Inc.,
111 NE 1st Street 8th Floor #1041 Miami, FL 33132, USA. (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.
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 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.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in the Processing Appendix which forms an integral part of the Clauses.
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.
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 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).
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.
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.
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.
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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
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.
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
The data exporter is the entity identified as “Customer” in the DPA.
The data importer is Cast AI Group Inc. a provider of a software-as-a-service platform.
Data subjects are defined in Section 4.3 of the DPA.
Categories of data
The categories of Personal Data are defined in Section 4.2 of the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
The nature of the Processing of Personal Data is providing the Services.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The data importer shall implement and maintain commercially reasonable technical and organizational security measures designed to protect Personal Data from Data Breaches, to help ensure the ongoing confidentiality, integrity, and availability of the Personal Data and Processing systems, in accordance with the data importer’s security standards, including, as appropriate, the measures referred to in Article 32 of the General Data Protection Regulation.