Data Processing Agreement
This Data Processing Agreement for the Data Protection (the "Agreement") is entered between Binotel LLC, a Ukrainian corporation whose principal place of residence is at st. Zdolbunivska, 7-D., Building "Z", office №207, Kyiv, 0208, Ukraine (the "Binotel") and you (together with subsidiary(ies) and affiliated entities, collectively, the "Company").

Hereinafter individually referred to as a "Party" and jointly as the "Parties".

The Parties have entered into a services agreement, the "Terms of Use" (hereinafter "Main Agreement") Due to the Main Agreement, Binotel will process Personal Data for the Company, for the purposes of providing the mobile application for recording employee calls and call history, recording analytical data (start and end time) of a call, transferring data to My Business's Binotel personal analytical account.

Under EU Regulation 2016/679 "GDPR", depending on the role of the Company, Binotel will act accordingly:

  • When the Company is the Data Controller, Binotel will be the Data Processor of the Company.
  • The Company is the Data Controller that controls Personal Data, collecting consent, managing consent-revoking, enabling the right to access Data Subjects.
  • Binotel is the Data Processor, that processes Personal Data on behalf of and under the instruction of the Company (Data Controller) and Binotel transfers Personal Data to a Sub-Processor for the purpose of provision of the Services as set forth in the Main Agreement.
  • When the Company is the Data Processor or the Data Sub-Processor, Binotel will be the Data SubProcessor of the Company.

  1. Definitions

    1. Words and phrases used in this Agreement have the following meanings:
    2. Agreement: The present Data Processing Agreement and all Annexes hereto.
    3. GDPR: EU General Data Protection Regulation (EU) 2016/679 is a regulation in EU law on data protection and privacy for all individuals within the European Union. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
    4. Data Controller: The natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; where the purposes and means of such processing are determined by Union or Member State law, the Data Controller or the specific criteria for its nomination may be provided for by Union or Member State law. Furthermore, Data Controller controls Personal Data, collecting consent, managing consent-revoking, enabling the right access to Data Subjects.
    5. Data Processor: The natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller. Furthermore, Data Processor processes Personal Data on behalf of and under the instruction of the Data Controller.
    6. Data Sub-Processor: A Processor engaged by the Data Processor, for the purpose of carrying out specific processing activities on behalf of the Data Controller.
    7. Data Protection Law(s): the local and international data regulation(s) and legislation(s) that are in force in any part of the world.
    8. Data Subject(s): An identifiable natural person, one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
    9. EEA: The European Economic Area.
    10. Personal Data Breach: 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.
    11. Personal Data: Any information relating to a Data Subject.
    12. Data Processing: Any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    13. Processing Instructions: The instruction(s) as set forth by the Data Controller to the Data Processor, for Data Processing of Personal Data of Data Subjects, for the purpose of Data Processor, provisioning Services to the Data Controller.
    14. Data Provider: The Company, a controller (or, where permitted, a processor) that transfers personal data to Binotel for the provisioning of Services to the Company.
    15. Standard Contract Clauses:

  2. Subject

    1. This Agreement forms part of the Main Agreement between Binotel and Company for the purpose of Binotel provisioning Services to the Company to reflect the Parties' agreement with regard to the Data Processing of Personal Data.
    2. By signing the Agreement, Company enters into this Agreement on behalf of itself and, to the extent required under applicable Data Protection Laws and GDPR, if and to the extent Binotel processes Personal Data that the Company provides and therefore qualifies as a Data Provider (Data Controller, Data Processor or Data Sub-Processor).
    3. In the course of providing the Services to the Company pursuant to the Agreement, Binotel may Process Personal Data on behalf of the Company and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
  3. Personal Data Processing

    1. Binotel shall process Personal Data provided by the Company on behalf and in accordance with the written instructions of the Company unless required otherwise by applicable Laws.
    2. Company shall, in its use of the Services provisioned by Binotel, Process Personal Data in accordance with the requirements of Data Protection Laws and GDPR. For the avoidance of doubt, the Company's instructions for the Processing of Personal Data shall comply with Data Protection Laws and GDPR. Company shall have sole responsibility for the accuracy, quality, legitimacy, and legality of Personal Data Processing and the means by which Company acquired Personal Data.
    3. The subject-matter of Personal Data Processing by Binotel is the provision and performance of the Services pursuant to the Agreement and Main Agreement. The purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this Agreement are further specified in Annex 1 of this Agreement.
    4. The Company hereby instructs Binotel to carry out part of the Processing.
    5. In the event that Binotel believes that the Company's instructions conflict with Data Protection Laws and GDPR, Binotel will inform the Company and the Company will amend the instructions accordingly. Binotel will not carry any processing instructions that conflict with GDPR and any Data Protection Laws.
  4. Personnel

    1. Binotel shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Binotel shall ensure that such confidentiality obligations survive the termination of the personnel engagement and the Agreement.
    2. Binotel shall take commercially reasonable steps to ensure the reliability of any Binotel personnel engaged in the Processing of Personal Data.
    3. Binotel shall ensure that Binotel's access to Personal Data is limited to those personnel who require such access to perform the Agreement.
  5. Obligations

    1. Binotel shall assist the Company in providing retrieval access, correction, delete and block to Personal Data processed to Data Subjects and Authorities, allowing Data Subjects to exercise their rights under GDPR and Data Protection Laws.
    2. Binotel shall assist the Company in meeting its GDPR obligations in relation to the security of Processing, the notification of Personal Data Breaches and data protection impact assessments.
    3. Binotel shall inform the Company immediately upon becoming aware of requests received directly by Data Subjects and Authorities.
    4. Binotel shall provide information and data to the Company, to assist the Company in meeting its GDPR obligations.
    5. Binotel shall delete or return all Personal Data to the Company as requested at the end of the Agreement unless required for the performance of Services or required by applicable Laws and Regulations.
    6. Binotel shall process Personal Data only to provide Company with the Services as described in the Main Agreement.
    7. Binotel shall provide at all times sufficient guarantees for its compliance with the requirements of the GDPR.
    8. Binotel shall treat the Personal Data as strictly confidential, ensuring personnel authorized to access and secure processing.
    9. Binotel shall ensure data availability and restoration functionality to the Company.
  6. Audit and Compliance

    1. Binotel has the right not to comply with requests for the removal of individual audio recordings if required by applicable law or at the request of a court order/request/ruling/ court order or at the request of authorized public authority. In doing so, Binotel must provide the Client with written notice of such request, if such notification does not contradict the legal requirement, not later than three working days from the moment of its receipt.
    2. Binotel has the right not to comply with requests for the removal of individual audio recordings if required by applicable law or at the request of a court order/request/ruling/ court order or at the request of authorized public authority. In doing so, Binotel must provide the Client with written notice of such request, if such notification does not contradict the legal requirement, not later than three working days from the moment of its receipt.
    3. Binotel shall allow for and shall contribute to audits and inspections conducted by a Company appointed an auditor. Audits may not be requested more than 2 times per year. Subject to reasonable prior notice from Company to Binotel, the appointed auditor may enter the rooms or locations where the personal data is processed by Binotel and inspect, audit any relevant records, processes, and systems, and copy any relevant Personal Data records to verify compliance with GDPR and Data Protection Laws.
    4. Company agrees to pay any and all costs of the full audit processes that are initiated by the Company and audit processes initiated by Authorities due to services provisioned by Binotel to the Company, including costs of involved third-parties (auditors, data centres, etc.) and Binotel (personnel compensation, traveling expenses, etc.).
    5. Company agrees that Binotel shall combine several audits in one single audit, in order to limit any impact on Binotel and third-parties' operations.
    6. Binotel shall fully cooperate and make available to Company on its demand all information that is necessary to demonstrate compliance with the GDPR obligations and obligations under this Agreement.
  7. Security and Data Protection

    1. Binotel shall take appropriate organizational and technical measures and policies to ensure the security of Personal Data Processing and meet sufficient guarantees of protection and security standards, including 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 Personal Data over a network, and against all unlawful forms of Processing.
  8. Personal Data Breach

    1. Binotel maintains security incident management policies and procedures and shall notify Company without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, transmitted, stored or otherwise Processed by Binotel or its Sub-Processors of which Binotel becomes aware. Binotel shall make reasonable endeavor to identify the cause of such Personal Data Breach Incident and take those steps as Binotel deems necessary and reasonable in order to remediate the cause of such an Incident to the extent the remediation is within Binotel's reasonable control. The obligations herein shall not apply to incidents that are caused by Company, Company's systems (Software and Hardware) or Company's personnel.
  9. Sub-Processors

    1. Company agrees that Binotel shall use Sub-Processors for the provision and performance of the Services pursuant to the Agreement and Main Agreement. Binotel shall ensure that Sub-Processors involved in the Processing of Personal Data shall be capable of providing necessary operational and technical level to comply with the requirements of GDPR and Data Protection Laws.
    2. Binotel shall inform the Company of any intended changes concerning the addition or replacement of other Sub-Processors, thereby giving the Company the opportunity to consent or object to such changes through written material or electronic form. Binotel shall not execute changes without the written consent of the Company.
    3. The Company will fully indemnify and hold Binotel harmless against all direct and indirect losses, claims, damages, fees and expenses incurred as a result of delays in Company's consent to Sub-Processor changes proposed by Binotel.
  10. Liability and Indemnity

    1. The Company shall indemnify and hold Binotel harmless against claims by Data Controllers, Data Processors, Data Sub-Processors, Data Subjects and/or penalties or fines imposed by an authority for which Binotel might become liable, due to an attributable failure by the Company to comply with the obligations under this Agreement and/or applicable Data Protection Laws.
    2. Binotel shall indemnify and hold the Company harmless against claims by Data Controllers, Data Processors, Data Sub-Processors, Data Subjects and/or penalties or fines imposed by an authority for which the Company may become liable, due to an attributable failure by Binotel to comply with the obligations under this Agreement and/or applicable Data Protection Laws.
    3. Company agrees to be held liable against all expenses, losses, costs and damages arising due to an attributable failure by the Company to comply with the obligations under this Agreement and/or applicable Data Protection Laws.
    4. The Company shall have full and sole liability for all damages resulting from a failure on its part to comply with the Agreement, GDPR, and Data Protection Laws. Company shall indemnify and hold Binotel harmless against all expenses, losses, costs, and damages arising therefrom. Should any person to whom personal data relates lodge a claim for compensation against Binotel and such claim is due to the Company's failure to comply with the provisions of this Agreement, GDPR or Data Protection Laws, the Company agrees to assist and intervene in Binotel's defense upon Binotel's request and shall indemnify and hold Binotel harmless from and against all expenses, losses, costs, and damages.
    5. Any limitations of liability agreed elsewhere shall not apply to this Agreement.
  11. International Transfers

    1. The Company acknowledges and agrees that Processor is located in Ukraine and that Company's provision of Personal Data to Processor for processing is a transfer of Personal Data to Ukraine.
    2. All transfers of Company's Personal Data out of the European Economic Area, Switzerland and the United Kingdom to countries that do not ensure an adequate level of data protection within the meaning of applicable data protection laws shall be governed by the Standard Contractual Clauses. The Standard Contractual Clauses, and Appendices 1 and 2 to the Standard Contractual Clauses set out in Annex 2 to this Agreement, are incorporated in this DPA by this reference solely as required with respect to Personal Data. Execution of this DPA by both parties includes execution of the Standard Contractual Clauses with respect to the processing of Personal Data.
  12. Applicable Law and Jurisdiction

    1. All disputes arising out of or in connection with this Agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters ("Netherlands Commercial Court" or "NCC District Court"), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal's Chamber for International Commercial Matters ("Netherlands Commercial Court of Appeal" or "NCCA"). This Agreement shall be governed by the laws of the Netherlands.

  13. Duration

    1. This Agreement will enter into effect on the Effective Date and will remain effective regardless of termination of the Agreement. Upon the Company's request, Binotel shall return or destroy the Personal Data, unless required for the performance of Services or required by applicable Laws and Regulations. If Binotel is required to retain Personal Data, Binotel shall inform the company and both Parties agree to cooperate towards the best possible solution for both Parties. If the Main agreement is terminated, this Data Processing Agreement will expire automatically.

  14. After Data Processing Termination

    1. Binotel shall guarantee the confidentiality of the Personal Data transferred at the direction of the Company, delete or return all the Personal Data to the Company after the end of the provision of services relating to processing, and delete existing copies unless any applicable law requires storage of the Personal Data; provided, however, that Binotel may retain Personal Data for the length of any applicable statutes of limitations for the purposes of bringing or defending claims.
    2. Binotel agrees to allow and to contribute to audits and inspections, subject to Article 6 of this Agreement.
  15. Order of Precedence

    1. In the event of a conflict between the provisions of this Agreement and those of the Main Agreement in respect of the Processing and Protection of Data, the provisions of this Agreement will prevail. Except as expressly modified herein, all terms and conditions of the Agreement shall remain in full force and effect.

ANNEX 1


DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.


Subject and Duration

The subject matter and duration of the Processing of the Company Personal Data are set out in the Main Agreement and this Agreement.


The Nature and the Purpose of the Processing

The purpose of зrocessing of Personal Data pertains to the provision of the Services, as requested by the Company. The nature of such processing is related to these purposes and is elaborated on in this Annex and the Main Agreement.
Categories of Data to Be Processed


The types of Company's Personal data to be Processed will typically include:

  • biographical information such as first and last name;

  • contact information such as phone number email address;

  • metadata about call such as the called and callee names, delay time, the time and data of the call, etc;

  • any personal information that can be included in call recordings;

  • background location data, if turned on.


Categories of Data to Be Processed

The types of Company's Personal Data to be Processed will typically include:

  • biographical information such as first and last name;

  • contact information such as phone number and email address;

  • metadata about calls such as the caller and callee names, delay time, the time and date of the call, etc.;

  • any personal information that can be included in call recordings.


Categories of Data Subjects

The Personal Data transferred will be subject to the processing activities for the purposes of providing the Services to the Company.



ANNEX 2

Commission Decision C(2010)593Standard 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 Company, as defined in the Agreement (as "data exporter"), and Binotel, as defined in the Addendum (as "data importer") each a "party"; together "the parties",

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

Clause 1

Definitions

For the purposes of the Clauses:

(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) 'the data exporter' means the controller who transfers the personal data;

(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) 'the 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;

(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

By entering into the Standard Contractual Clauses, pursuant to Section 12.1 of the Agreement, the parties are deemed to have signed this Appendix 1.

Data exporter

The data exporter is the Company, as defined in the Agreement.

Data importer

The data importer is Binotel, as defined in the Agreement .

Data subjects

The categories of Data Subjects to whom the Company's Personal Data relates include the Company's employees and clients.

Categories of data

The types of Company's Personal Data to be Processed will typically include:

  • biographical information such as first and last name;

  • contact information such as phone number and email address;

  • metadata about calls;

  • any personal information that can be included in call recordings.
Processing operations

The Personal Data transferred will be subject to the processing activities for the purposes of providing the Services to the Company.


APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

By entering into the Standard Contractual Clauses, pursuant to Section 12.1 of the Addendum, the parties are deemed to have signed this Appendix 2.

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):

Data importer has implemented and will maintain the technical and organizational security measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

Binotel's organizational safeguards define how its employees perform their duties. From a preventative viewpoint, Binotel maintains a version controlled information security plan which is used as part of its employees' security training. Binotel practices 'separation of duties' amongst its employees to help ensure that each employee only has the necessary privileges required to perform their job. Binotelt's detection organizational safeguards include performing risk management assessments to verify each safeguards' efficacy. In addition, background investigations of prospective employees and the implementation of a detailed employee termination process ensure that risk exposure through the hiring and termination practices are well controlled.

Regarding technical guarantees, Binotel uses several technologies to reduce vulnerability. Binotel uses secure systems, in particular Linux. Finally, Binotel uses both login authentication and user access control to ensure that the appropriate level of access is approved by the management and made available to the appropriate staff.


Valid from 01.10.2019

Last revised: 04.28.2021