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Welcome to the https://www.warebuy.com/partner site. WareBuy provides this site to you subject to the following conditions. By visiting the https://www.warebuy.com/partner site (the “Site”), you accept these conditions. Please read them carefully.

These ‘Terms and Conditions’ constitute an electronic record within the meaning of the applicable law. This electronic record is generated by a computer system and does not require any physical or digital-signatures.

TERMS AND CONDITIONS

1.     Enrollment.

To begin the enrollment process, you must complete the registration process as provider of one or more of the Services. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law (for example, the Elected Country may not allow minors to use the Services). As part of the application, you must provide us with your business' legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.

2.     Term and Termination.

The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the "Term"). We may terminate or suspend this Agreement or any Service for any reason at any time by giving notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by WareBuy. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections ______ will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.

3.     UNSOLICITED IDEA SUBMISSION POLICY

WAREBUY OR ANY OF ITS EMPLOYEES DO NOT ACCEPT OR CONSIDER UNSOLICITED IDEAS, INCLUDING IDEAS FOR NEW ADVERTISING CAMPAIGNS, NEW PROMOTIONS, NEW PRODUCTS OR TECHNOLOGIES, PROCESSES, MATERIALS, MARKETING PLANS OR NEW PRODUCT NAMES. PLEASE DO NOT SEND ANY ORIGINAL CREATIVE ARTWORK, SAMPLES, DEMOS, OR OTHER WORKS. THE SOLE PURPOSE OF THIS POLICY IS TO AVOID POTENTIAL MISUNDERSTANDINGS OR DISPUTES WHEN WAREBUY'S PRODUCTS OR MARKETING STRATEGIES MIGHT SEEM SIMILAR TO IDEAS SUBMITTED TO WAREBUY. SO, PLEASE DO NOT SEND YOUR UNSOLICITED IDEAS TO WAREBUY OR ANYONE AT WAREBUY. IF, DESPITE OUR REQUEST THAT YOU NOT SEND US YOUR IDEAS AND MATERIALS, YOU STILL SEND THEM, PLEASE UNDERSTAND THAT WAREBUY MAKES NO ASSURANCES THAT YOUR IDEAS AND MATERIALS WILL BE TREATED AS CONFIDENTIAL OR PROPRIETARY.

4.     MONITORING

WareBuy shall have the right, but not the obligation, to monitor the content of www.WareBuy, including communications and forums, to determine compliance with this Agreement and any operating rules established by WareBuy and to satisfy any law, regulation or authorized government request. WareBuy shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on www.WareBuy. Without limiting the foregoing, WareBuy shall have the right to remove any material that WareBuy, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.

5.     Indemnification.

You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of Your Sales Channels other than WareBuy, Your Products (including offer, sale, performance, and fulfillment), any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or (d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense and you agree to indemnify us against the cost involved. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.

 

6.     Representations.

You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to WareBuy or its Affiliates is at all times accurate and complete; (d) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; and (e) you and all of your subcontractors, agents, and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.

7.     Disclaimer & General Release.

THE WAREBUY, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE WAREBUY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN WAREBUY AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.

8.     Limitation of Liability.

WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF WAREBUY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY YOU TO WAREBUY IN CONNECTION WITH THE PARTICULAR TRANSACTION GIVING RISE TO THE CLAIM.

9.     Tax Matters.

As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) WareBuy automatically calculates, collects, or remits taxes on your behalf according to applicable law; or (ii) WareBuy expressly agrees to receive taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by WareBuy and used by you. All fees and payments payable by you to WareBuy under this Agreement or the applicable Service Terms are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and you will be responsible for paying WareBuy any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.

10.  Third Party Content.

You understand and agree that WareBuy and the website merely provide hosting services to its Users and persons browsing/visiting the website. The third party suppliers provide the content required to create and maintain a page on WareBuy with respect to their products and services. These third party suppliers are the sole owners of the said content and thus responsible for their accuracy. We at WareBuy, merely upload the said content in a specific format on our website. We thus provide an online market place for content, products and services developed by third parties. The said content may include the benefits, details, specifications of the said product or services and the details of the third party supplier of the said product or service. These Third parties may provide links to websites operated by them or other entities on their product page listed on this website. If the user decides to view these websites, they shall do so at their own risk, subject to that websites’ terms and conditions of use and privacy policy that may be different from those of this site. It is the user’s responsibility to take all protective measures to guard against viruses or other destructive elements they may encounter on these websites. WareBuy makes no warranty or representation regarding, and do not endorse any linked website or the information appearing thereon or any of the products or services described thereon. Further, user’s interactions with third party organizations and/or individuals found on or through the present service, including payment and delivery of goods and/or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the user and such organization and/or individual. The user should make whatever investigation they feel necessary or appropriate before proceeding with any offline or online transaction with any of these third parties. You further acknowledge and agree that WareBuy shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.

11.  Confidentiality

WareBuy places strict importance on Confidential Information and hence this term shall be mutually applicable to WareBuy, its affiliates, its suppliers and its users.

The Receiving Party shall:

(a) hold all the Confidential Information in strict trust and confidence; (b) refrain from using or permitting others to use the Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement; (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining the express prior written consent of the Disclosing Party; and (d) limit access to the Confidential Information to its employees or agents who have a reasonable need to have such access to such Confidential Information.

The Parties will protect the Confidential Information from any unauthorized use, access, or disclosure in the same manner as each Party protects its own confidential or proprietary information of a similar nature.

The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is required to do so by a valid judicial or other governmental order, provided that it: (i) provides the Disclosing Party with reasonable notice and prior opportunity to object before making the disclosure.; (ii) seeks confidential treatment of the Disclosing Party’s Confidential Information as part of the judicial or governmental proceeding; (iii) complies with any applicable protective order or equivalent with respect to that disclosure; and (iv) limits its disclosure of the Disclosing Party’s Confidential Information to those matters required to be disclosed.

Each Party retains and reserves all rights, title, and interest in its own Confidential Information. When the Receiving Party receives Confidential Information of the Disclosing Party, the Receiving Party does not acquire any rights in it, and obtains no license, rights, or interest in any of the Intellectual Property Rights contained or embodied in such Confidential Information.

The Parties acknowledge and agree that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of the Disclosing Party’s Confidential Information and that the Disclosing Party shall be entitled to seek injunctive or equitable relief as may be deemed proper by a court or forum that has jurisdiction, without having to waive any other rights or remedies that may also be available to it.

12.  Relationship of Parties.

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of WareBuy, you, and customers. As between you and us, you will be solely responsible for all obligations associated with the use of any third party service or feature that you permit us to use on your behalf, including compliance with any applicable terms of use. You will not make any statement, whether on your site or otherwise, that would contradict anything in this section.

13.  Your Products, Services and Relevant Information. 

You will provide in the format we require accurate and complete Required Product and Services Information for each product or service that you offer through any WareBuy and promptly update that information as necessary to ensure it at all times remains accurate and complete. You will also ensure that Your Products and/or Services, subsequent sale of any of the same on WareBuy comply with all applicable Laws and do not contain any sexually explicit (except to the extent expressly permitted under governing laws), defamatory or obscene materials. You may not provide any information for, or otherwise seek to offer any Excluded Products on WareBuy; or provide any URL Marks for use, or request that any URL Marks be used, on WareBuy. If you offer a product for sale on WareBuy that requires a warning under any governing and applicable law, you (a) will provide us with such warning in the manner specified by such law, (b) agree that our display of such Warning on a product detail page is confirmation of our receipt of that warning, and (c) will only revise or remove a Warning for a product/service when the prior warning is no longer legally required.

14. Privacy 

Please review our Privacy Policy, which also governs your visit to this Site, to understand our practices.

15. Electronic Communications 

When you visit the Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

16.Payment Terms 

You agree that WareBuy will act as custodian of the transaction amount. WareBuy will deduct its commission at an agreed rate and release the remainder after the product is delivered as per the buyer’s satisfaction. WareBuy has a simple and transparent fee structure for the suppliers. Suppliers pay a commission on each product or service sold through WareBuy’s website. To market and sell on WareBuy, you, the supplier agrees to pay a fixed commission at the rate of 20% of the total sales price paid by the buyer. Further, in case of subscription based product, you agree that WareBuy will also be entitled for a commission at the rate of 20 % for every subsequent renewal of the subscription, be it either monthly or yearly. For cancellation, refund and return procedures please click here.

17. Intellectual Property Rights

 a) Protection of our Supplier’s Intellectual Property

WareBuy agrees that the product or services listed on its website which has been developed exclusively by the third party supplier shall be the sole and exclusive property of such supplier. Further, the Supplier retains ownership rights in and to proprietary marks/intellectual property, including but not limited to any program and resulting reports that involve scientific and technologic innovations pertaining to the supplier’s solutions or services or designs or any other information pertaining to research and development, proprietary methods, models, procedures, processes, protocols, schematics, techniques, tools, new products, reports, marketing and selling plans, budgets and unpublished financial statements, licenses, prices and cost, supplier and customers information.

WareBuy shall make use of the Supplier’s proprietary marks /intellectual property for the sole purpose of listing and marketing the Supplier’s products, services or solutions under the present Terms and Conditions and no further or for any purpose outside the scope of the present Terms and Conditions. It is expressly understood that the Supplier does not grant WareBuy any interest in any of the Supplier’s intellectual property rights. 

Use of the content for any purpose not expressly permitted in these Terms and Conditions is prohibited and may invite legal action. As a condition of your access to and use of WareBuy’s services, you agree that you will not use the website service to infringe the intellectual property rights of others in any way. WareBuy reserves the right to terminate the account of a user upon any infringement of the rights of others in conjunction with use of the WareBuy’s service, or if WareBuy believes that user’s conduct is harmful to the interests of WareBuy, its affiliates, other users, third party supplier of products and services or for any other reason in WareBuy’s sole discretion, with or without cause.

b) Protection of WareBuy’s Intellectual Property

 All content included on this website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of WareBuy or its affiliates or its content suppliers and protected by United States, India and international copyright laws. The compilation of all content on this website is the exclusive property of WareBuy or its affiliates and protected by United States, India and international copyright laws. All software used on this website is the property of WareBuy, its affiliates or its software suppliers and protected by United States, India and international copyright laws.

WareBuy, the WareBuy logo and other marks indicated on our website are trademarks of WareBuy or its affiliates in the United States and other countries. Other WareBuy graphics, logos, page headers, button icons, scripts, videos, infographics and service names are trademarks or trade dress of WareBuy or its affiliates. WareBuy and its affiliates’ trademarks and trade dress may not be used in connection with any product or service that is not WareBuy or its affiliates’ as applicable, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits WareBuy or its affiliates.

All other intellectual property rights not owned by WareBuy or its affiliates that appear on this website are the property of their respective suppliers / owners, who may or may not be affiliated with, connected to, or sponsored by WareBuy or its affiliates.

 c) General

WareBuy respects the intellectual property rights of others, and we expect our Suppliers and User(s) to do the same. We believe that the users agree that they will not copy, download & reproduce any information, text, images, video clips, directories, files, databases or listings available on or through the website for the purpose of re-selling or re-distributing, mass mailing (via email, wireless text messages, physical mail or otherwise), operating a business competing with WareBuy, or otherwise commercially exploiting WareBuy’s or the supplier’s content. Systematic retrieval of the content on our website to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from WareBuy is prohibited.

WareBuy is not an expert in your intellectual property rights, and we cannot verify that the suppliers of our online marketplace have the right to sell the goods and/or services offered by them. WareBuy is also not an arbiter or judge of disputes about intellectual property rights. By taking down a listing, as a prudential matter, WareBuy is not endorsing a claim of infringement. Neither, in those instances in which WareBuy declines to take down a listing, is WareBuy determining that the listing is not infringing, nor is WareBuy endorsing the sale of goods in such cases. WareBuy does not represent or endorse the accuracy or reliability of any information or content contained on, distributed through, or linked, downloaded or accessed from any of the services contained on its website, or the quality of any products, information or other materials displayed, or obtained by you as a result of an advertisement or any other information or offer in or in connection with its services.

In no event WareBuy shall be liable for any direct, indirect, incidental, punitive, or consequential damages of any kind whatsoever with respect to its services. Users of this website must hereby acknowledge that any reliance upon any content shall be at their sole risk.

18. Your Activity on the WareBuy

WareBuy and its affiliates reserve the right to refuse service, terminate accounts, or remove or edit content in their sole discretion. You must not use the Site in any way that causes, or is likely to cause, the website or access to it to be interrupted, damaged or impaired in any way. You understand that you, and not WareBuy, are responsible for all electronic communications and content sent from your computer to us and you must use the Site for lawful purposes only and only in accordance with the applicable law.
You must not use the Site for any of the following:

for fraudulent purposes, or in connection with a criminal offence or other unlawful activity;
to send, use or reuse any material that is illegal, offensive, (including but not limited to material that is sexually explicit or which promotes racism, bigotry, hatred or physical harm), abusive, harassing, misleading, indecent, defamatory, disparaging, obscene or menacing; or in breach of copyright, trademark, confidentiality, privacy or any other proprietary information or right; or is otherwise injurious to third parties; or objectionable or otherwise unlawful in any manner whatsoever; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any “spam”; to cause annoyance, inconvenience or needless anxiety;

19. Your License 

If you submit material, and unless we indicate otherwise, you grant WareBuy and its affiliates a nonexclusive, royalty-free, irrevocable, perpetual and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media for as long as you are permitted to grant the said licence under applicable law. You grant WareBuy and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content or material that you post or submit or that you otherwise provide on or through the WareBuy; that the content is accurate; that the content is lawful; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify WareBuy and its affiliates for all claims arising from content you supply. WareBuy has the right but not the obligation to monitor and edit or remove any activity or content. WareBuy takes no responsibility and assumes no liability for any content submitted by you or any third party.

20. Applicable Law 

By visiting this Site, you agree that the laws of New Jersey, United States of America will govern these Terms of Use and any dispute of any sort that might arise between you and WareBuy or its affiliates.

21. Disputes 

Any dispute relating in any way to your visit to this Site shall be submitted to the appropriate and exclusive jurisdiction of the, state or federal, courts of State of New Jersey.

22. Site Policies, Modification and Severability 

Please review our other policies and terms of use on this Site. These policies also govern your visit to the Site. We reserve the right to make changes to our Site, policies, and these Terms of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

If you become a vendor on the WareBuy, your activities will be governed by the WareBuy Terms & Conditions of Use and any other applicable policies or agreements.

Data Processing Addendum

This Data Processing Addendum ("DPA") is incorporated into and forms a part of all Terms and Conditions created for using WareBuy.com, Inc. ("WareBuy") and Users that governs user’s access and usage of e-commerce services provided by WareBuy.com ("T&Cs"). Except as modified below, the T&Cs shall remain in full force and effect.

  1. Definitions
  1. Processing of Personal Data
  1. International Transfers
  1. WareBuy Personnel
  1. Subprocessing
  1. Data Subject Rights
  1. Personal Data Breach
  1. Data Protection Impact Assessment and Prior Consultation
  1. Return of Personal Data
  1. Audit Rights
  1. California Consumer Privacy Act of 2018
  1. General Terms

ANNEX 1: DETAILS OF PROCESSING OF USER PERSONAL DATA

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

Subject matter and duration of the Processing of Personal Data:

The subject matter and duration of the Processing of Personal Data are set out in the T&Cs and this DPA.

The nature and purpose of the Processing of Personal Data

Processing of Personal Data by WareBuy is reasonably required to facilitate or support the provision of the Services as described under the T&Cs and this DPA.

Type of Personal Data and Categories of Data Subjects:

The types of Personal Data and categories of Data Subject about whom the Personal Data relates are determined and controlled by User in its sole discretion. WareBuy’s Services does not impose any limits on the type of data stored or otherwise processed.

Obligations and Rights of the Controller:

The obligations and rights of User are set out in the T&Cs and this DPA.

ANNEX 2: STANDARD CONTRACTUAL CLAUSES

For the purposes of Article 26(2) of Directive 95/46/EC, or a successor law or regulation including the GDPR, for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

User (the “data exporter”)

and

WareBuy Inc. (the “data importer”)

each a “party”; together “the parties”,

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

Clause 1

Definitions

For the purposes of the Clauses:

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

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

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

(d) 'the 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 T&Cs 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 T&Cs 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 or 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.

  1. 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.

  1. 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

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 10

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 T&Cs 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 T&Cs the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such T&Cs.
  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 T&Css 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 11

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.

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