Graphy Data Processing Addendum

LAST UPDATED: 12th July 2024

This Data Processing Addendum (“DPA”) is made and entered into as of the Effective Date by and between You (referred to as “you” or the “Creator”) and Graphy Labs Private Limited, a company incorporated in India and having its registered office located at Maruti Infotech Centre, 5 th Floor, A- Block, Domlur, Koramangala Inner Ring Road, Bangalore- 560 071, Karnataka, India and Graphy INC,a company incorporated in the USA and having its registered office at Vistra (Delaware) Ltd, 3500 South Dupont HWY, Dover, Kent, DE 19901 (collectively “Graphy”) (each a “Party” and collectively the “Parties”).This DPA supplements the Terms of Service entered into between the Parties. All capitalized terms used but not defined in this DPA shall have the meaning ascribed to them in our Terms of Service.

1. Overview:

As per Article 28(3) of the General Data Protection Regulation (“GDPR”), to share Personal Data of individuals situated in European Union (“EU”), European Economic Area (“EEA”), Switzerland and United Kingdom (“UK”), in a more regulated manner; controllers, processors, and sub-processors are required to enter into written contracts, or data processing agreements. Data processing addendums/agreements establish roles and responsibilities for controllers, processors, and sub-processors, and create liability limitations. Essentially, this is a form of assurance that the processor or sub-processor performs their due diligence to ensure the privacy of Personal Data.

This DPA between you and Graphy defines the respective roles and responsibilities as Controllers and Processors of Personal Data collected through the Platform (as defined in the Terms of Service),in accordance with the applicable Data Protection Laws (defined below).

2. Definitions:

Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the meaning assigned to it under this clause or elsewhere in this DPA. Capitalized terms used but not defined in this DPA can be found in our Terms of Service and/or other Platform Terms. When we refer to any such term in this DPA, we will try and specify where in the Policy and/or other Platform Terms you can find the meaning/definition.

“Authorized User(s) Data” shall have the meaning assigned to it under the Privacy Policy i.e., it shall mean and include any Personal Data (as defined below) that a Creator collects from their Authorized User(s) through the Creator’s Page (as defined in the Terms of Service including without limitation i) Authorized Users’ account information, such as name and email address; and (iii) any messages or communications between the Creator and their Authorized Users.
“Content on Creator’s Page” shall have the meaning assigned to it under the Terms of Service and includes any information, materials, media, applications, data, services, subject-matter, including Personal Data, or solutions created and/or uploaded by a Creator on the Platform.
“Controller” shall mean the Person, who alone or jointly with others, determines the purpose and means of Processing of Personal Data and shall include the meaning assigned to the term in the applicable Data Protection Laws.
“Creator Data” shall have the meaning assigned to it under the Privacy Policy i.e., Content on Creator’s Page (as defined in the Terms of Service), and the Page User(s) Data (as defined below). Creator Data specifically excludes User Data (defined below).
“Data Protection Laws” shall have the meaning assigned to it under the Privacy Policy i.e., it shall mean and include the Digital Personal Data Protection Act, 2023, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, the EU Data Protection Laws (defined below) and / or the California Consumer Privacy Act (CCPA) or other equivalent / similar legislations, as may be amended, superseded,or replaced from time to time, and as applicable in the context of this DPA and other Platform Terms.
“Data Subject Request” shall mean an actual or purported request, notice, or complaint from, or on behalf of, a Data Subject under Data Protection Laws, including, but not limited to,requests under Articles 16, 17 , or 18 of the GDPR, requests for data portability, objections to Processing, or requests not to be subject to automated decision-making.
“Effective Date” means the date on which the Creator accepts the Terms of Service as stated therein.
“End-User(s) Data” shall have the meaning assigned to it under the Privacy Policy i.e., it shall mean and include any Personal Data (as defined below) that a Creator collects from their End- User(s) through the Creator’s Page (as defined in the Terms of Service), including without limitation (i) End-Users’ account information, such as name and email address; (ii) information about an End-Users’ purchases and other activities on the Creator’s Page, including course or session completion status, quiz results (if any) and certificates (if any and applicable); and (iii) any messages or communications between the Creator and their End-Users.
“EU and UK Data Protection Laws” shall mean and include all data protection laws and regulations applicable to the EU, EEA, Switzerland, and the UK, including without limitation (i) GDPR; (ii) Privacy and Electronic Communications Directive 2002 (“e-Privacy Directive”); (iii) applicable national legislation implementing the GDPR and e-Privacy Directive; and (iii) with respect to the UK, UK General Data Protection Regulation (UKGDPR), tailored by the Data Protection Act 2018, as amended from time to time.
“Page User(s) Data” shall mean and include Authorized Users Data and End Users Data.
“Personal Data” shall have the meaning assigned to it under the Privacy Policy i.e., shall mean and include any information which identifies a user of the Platform, including first and last name, identification number, email address, age, gender, location, photograph and/or phone number and any other information categorized as ‘personal data’ under the Data Protection Laws.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed.
“Processor” shall mean the Person who processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses”/(“SCCs”) shall mean the SCCs for Controller-Processor transfer of data issued by the European Commission in decision 2010/87/EU, which are included in this DPA by reference and in Exhibit 1 attached hereto.
“Sensitive Personal Data” shall have the meaning assigned to it under the Privacy Policy i.e.,it shall mean and include (i) passwords and financial data (except the truncated last four digits of credit/debit card), (ii) health data, (iii) official identifier (such as biometric data, aadhar number, social security number, driver’s licence, passport, etc.,), (iv) information about sexual life, sexual identifier, race, ethnicity, political or religious belief or affiliation, (v) account details and passwords, or (vi) other data/information categorized as ‘sensitive personal data’ or ‘special categories of data’ under the applicable Data Protection Laws and in context of this DPA and other Platform Terms.
“Sub-Processor” means any person appointed by Graphy to process data in furtherance of Graphy’s Processing of Creator Data and User Data.
“User Data” shall have the meaning assigned to it under the Privacy Policy i.e., it shall mean and include any information, including Personal Data, that Graphy directly collects from the Creator and processes in connection with the use of the Platform and the provision of the Services on the Platform. User Data specifically excludes Creator Data.
The terms, "Commission", "Data Subject", "Member State", "Processing" and "Supervisory Authority" shall have the same meaning as in the applicable Data Protection Laws,whether such terms are capitalized therein or not.

3. Roles of the Parties:

The Parties acknowledge and agree that Creator is the Controller with respect to the Processing of Creator Data and Graphy only acts as the Processor on behalf of the Creator. Graphy shall process Creator Data on behalf of and solely in accordance with Creator’s Documented Instructions to Graphy (defined below). It is hereby clarified that in respect of any Page User(s) Data processed and stored by the Creator outside the purview of the Platform, the Creator shall be solely responsible to comply with the applicable laws in processing and storing such Page User(s) Data.
The Parties acknowledge and agree that Graphy shall be the Controller with respect to the User Data collected, processed, and stored on the Platform and will determine the purposes and means of its Processing of the User Data.

4. Obligations of the Parties:

Creator shall –
1. in his/her/its use of the Platform and Processing of Creator Data, comply with all applicable laws, including without limitation to the Data Protection Laws;
2. ensure that it will continue to have the right to transfer, or provide access to, Creator Data to Graphy for Processing in accordance with our Terms of Service and this DPA;
3. Creator shall implement appropriate technical and organizational measures to protect Page User(s) Data and use the level of protection as required by Data Protection Laws; and
4. be solely responsible for the accuracy, quality, and legality of Creator Data and the means by which such data was acquired by the Creator.
Creator hereby appoints Graphy to process Creator Data on behalf of the Creator as far as is necessary to perform their respective obligations under the Terms of Service, this DPA, applicable laws and as otherwise agreed in writing by the Parties hereto (“Documented Instructions to Graphy”/ “Documented Instructions”). Creator will ensure that Documented Instructions to Graphy as stated above, will not cause Graphy to violate any applicable laws, including Data Protection Laws. Creator represents and warrants that it has a valid legal basis or lawful purpose for the Processing of Creator Data, including but not limited to the following: (a) the Page Users have given consent to the Processing of their Personal Data; (b) the legitimate interests of Creator; or (c) the Processing is necessary for the performance of a contract to which the Page User(s) is/are a party or in order to take steps at the request of the Page User(s) prior to entering into a contract. Creator further represents and warrants that it shall maintain a record of such valid legal basis and lawful purposes and shall immediately notify Graphy if any change should occur in the legal basis or lawful purposes for the Processing or transfer of Creator Data and shall immediately instruct Graphy of any new or revised scope, duration, subject-matter, nature.
Creator shall have sole responsibility for the accuracy, quality, and legality of Creator Data and the means by which Creator acquires Creator Data. Creator represents and warrants that it has all rights and necessary consents and that it has provided all necessary notices to Process Creator Data and to transfer Creator Data to Graphy. Creator shall obtain all necessary consents from their Page User(s) and shall maintain a record of such rights and consents.

5. Scope and Processing of Creator Data:

Graphy shall process Creator Data in accordance with the following:
1. Subject-Matter of Processing: Graphy shall process the Creator Data for the provision of Services (as defined in the Terms of Service) on the Platform.
2. Duration of the Processing: Graphy will process the Creator Data for the Term of this DPA (defined under the Term and Termination clause below), unless otherwise agreed to in writing.
3. Nature and Purpose of the Processing: Graphy provides a holistic Platform for Creators to create, design, publish and sell their Content and in using the Platform, Creators may collect, upload, submit, or otherwise provide Creator Data to Graphy, which shall be processed by Graphy in accordance with the Documented Instructions to Graphy and as mentioned in the Privacy Policy. Processing activities may include collection, retrieval, organization, storage, enhancement, aggregation, de-identification, use, and disclosure. Creator acknowledges and agrees that it controls how Creator Data is used and processed.
4. Data Subjects and Categories of Personal Data: The extent of Personal Data in the Creator Data is determined and controlled by the Creator, in its sole discretion. The type of Data Subjects and categories of Personal Data included in any Creator Data will depend on the nature of Creator Data submitted by the Creator, which may include Personal Data (such as biographical and contact information) about the Creator, Creator’s Page User(s) and/or third parties.
If either Party becomes aware of or has reason to believe that any Documented Instruction is in violation of or infringes upon any Data Protection Law, then it shall notify the other Party. Graphy shall ensure that its employees, authorized agents, and any Sub-Processors authorized to process Creator Data have agreed to comply with confidentiality obligations with respect to Creator Data, except where Creator Data is required to be disclosed by law and/or the relevant data/information is already in the public domain.
Creator agrees that it will not cause Graphy to process any Personal Data that presents a high risk to the rights and freedoms of their Page User(s) and/or other Data Subjects, including without limitation, any Sensitive Personal Data of Creator’s Page User(s) or other Data Subjects.

Further, the Creator understands and agrees that in collecting, using, storing, or otherwise processing any Personal Data, including Creator’s Page User(s) Data, the Creator shall do so securely and only for as long as it is needed and always in accordance with applicable privacy and Data Protection Laws. The Creator shall also disclose their privacy practices on the Creator’s Page.

Each Party will process any Personal Data that it has access to through the Platform solely and exclusively for the purposes specified in the Privacy Policy, Terms of Service, this DPA or other disclosure under applicable Data Protection Laws.

6. Sub-Processors:

Creator hereby provides a general authorization to Graphy to engage Sub-Processors for the processing of Creator Data on the Creator’s behalf and without Creator’s prior consent. Graphy shall endeavour to make available an updated list of Sub-Processors engaged by Graphy for the Processing of Creator Datawhich upon Creator’s request, Graphy shall provide to the Creator; (request can be sent to privacy@graphy.com).

Graphy shall ensure that each of its Sub-Processors is bound by substantially the same or equivalent data protection obligations as applicable to Graphy under this DPA by way of a contract (which may include acceptance of any online terms and conditions), and that they provide sufficient guarantees to implement appropriate technical and organizational measures such that Processing by the Sub-Processor will meet the requirements imposed by the Data Protection Laws.

7. Data Subject Requests:

Services on the Platform provide the Creator with the ability to modify, delete, and restrict access to Creator Data available on the Platform, which would help the Creator in complying with their obligations under Data Protection Laws with respect to responding to requests from Data Subjects, including Creator’s Page Users, regarding Creator Data.
In the event that any request, correspondence, inquiry, or complaint from a Data Subject, regulatory agency, or third party, including, but not limited to law enforcement, is made directly to Graphy in connection with Graphy’s Processing of Creator Data, Graphy shall inform Creator of the request, correspondence, inquiry, or complaint. Unless legally obligated to do so, Graphy shall not respond to any such request, inquiry, or complaint without Creator’s prior consent. In the case of a legal demand for disclosure of Personal Data in the form of a subpoena, search warrant, court order, or other compulsory disclosure request, Graphy shall attempt to redirect the requesting party or agency to request disclosure from the Creator.
Each Party to this DPA, shall, within the turn-around-time required by Data Protection Laws, promptly respond to Data Subject requests received by itself concerning the processing of the applicable Personal Data.

8. CCPA Requirements:

To the extent that Creator Data is subject to the CCPA, the Parties agree that the Graphy is acting solely as a service provider with respect to such Creator Data.
Graphy shall not retain, use, or disclose any Creator Data subject to the CCPA for any purpose other than for the specified purpose of performing the Services specified in the Platform Terms or any other agreement with Graphy.
Creator agrees that any Creator Data that is subject to the CCPA was not sold to the Creator and the Creator shall not “sell” personal information as is defined under the CCPA. Creator further agrees that it shall not retain, use, or disclose Personal Data outside the direct business relationship between Creator and their Page User(s), and Creator and Graphy, respectively.
Graphy shall provide assistance to the Creator, as reasonably necessary, to fulfil any obligation to respond to Data Subject requests under the CCPA. Similarly, Creator shall enable Graphy to fulfil its obligations to the Data Subject requests, if any, in compliance with the CCPA within the mandated time limits.
By executing this DPA, both Parties certify that they understand the restrictions set out in this clause and will comply with them. To clarify, acceptance of the Terms of Service shall be deemed as acceptance and execution of this DPA by both parties hereto, and no other form of physical or digital execution shall be required on the same.

9. Security and Compliance:

Graphy undertakes to establish and maintain appropriate technical and organizational measures in order to protect Creator Data against accidental, unauthorised, or unlawful destruction, loss, alteration, disclosure, or access.
Each Party shall take reasonable steps to ensure that any natural person acting under the authority of that Party who has access to Creator Data and/or User Data does not process such data in violation of Data Protection Laws or this DPA. Each Party shall be responsible for the safeguards and shall take appropriate steps to confirm that its personnel are protecting the security, privacy, and confidentiality of Creator Data and User Data (as applicable) in a manner consistent with the requirements of this DPA and the applicable Data Protection Laws.
If either Party becomes aware of a Personal Data Breach that affects Creator Data or, the discovering Party shall notify the other Party of the Personal Data Breach without undue delay via email to the registered email address of the Creator or to Graphy at privacy@graphy.com, respectively.
To ensure compliance with the applicable Data Protection Laws, Graphy shall make available to the Creator information necessary to demonstrate compliance with the legal obligations related to the processing of Creator Data by Graphy on behalf of the Creator.
Graphy will implement appropriate technical and organizational safeguards prior to and during the processing of any Creator Data and ensure a level of security appropriate to the risks presented by the processing of Creator Data.

10. Data Transfers:

Where the Creator belongs to a country outside India, the Creator acknowledges and agrees that Creator Data will be transferred to India. Creator further acknowledges and agrees that Graphy’s Sub-Processor for cloud storage and related services may in limited instances transfer Creator Data to other jurisdictions for which the European Commission has not adopted an adequacy decision. To facilitate such transfers, the Parties hereby enter into the Standard Contractual Clauses attached hereto as Exhibit 1, which are incorporated by reference herein. The Parties shall work together during the term of this agreement to ensure that they (or any relevant Sub-Processor) have a legally approved mechanism in place to facilitate such data transfers, including working together to document the appropriateness of such mechanism in accordance with applicable Data Protection Laws relating to the transfer.
To the extent that the Creator’s Data transfer is protected by the Data Protection Laws, Parties hereto agree to abide by and process Creator’s Data in compliance with the Standard Contractual Clauses, which are incorporated in full by reference and form an integral part of this DPA.
Creator acknowledges and agrees that Graphy shall be entitled to enter into Standard Contractual Clauses with any Sub-processor on behalf of the Creator.
If a Creator is located in a country not recognized by the European Commission as providing an adequate level of protection for Personal Data within the meaning of GDPR, Creator agrees to and shall enter into Standard Contractual Clauses prior to any transfer of Creator Data which may be subject to GDPR under this DPA.

11. Limitation of Liability:

Except as otherwise required under Data Protection Laws, Graphy’s liability under this DPA is limited to the extent as set out in our Terms of Use.

12. Term and Termination:

Unless otherwise agreed by Parties hereto or otherwise deemed by applicable Data Protection Laws, this DPA shall be deemed effective from the Effective Date (defined under the Definitions clause above) and shall continue until the Creator continues to use the Platform and retain his/her/its account on the Platform, in accordance with the Terms of Service(“Term”).
When the Creator deletes their account on the Platform, all of Creator’s Data under Graphy’s possession or control, will either be returned to the Creator or deleted from Graphy’s servers.

13. Miscellaneous:

Unless otherwise agreed to between the Parties hereto, Creator acknowledges and agrees this DPA shall replace any existing data processing agreement that the Parties may have previously entered into in connection with Graphy’s Services.
Severability: If any provision of this DPA will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this DPA will otherwise remain in effect.
Assignments: No one other than the Party to this Agreement, its successors and permitted assignees (as determined in the Terms of Service) shall have any right to enforce any of its terms.
Amendments & Updates: Graphy may update the terms of this DPA from time to time, at its sole discretion, and Graphy shall endeavour to give Creator reasonable advance notice of the update.
Notices: Unless otherwise specified in this Agreement, each party giving notice or other communication required or permitted under this DPA shall use one of the following methods of delivery: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), or email.

14. Governing law and Jurisdiction:

If You are a Creator situated in India and accessing the Platform from India, then in unlikely event of dispute between us, this DPA shall be governed by and construed in accordance with the laws of India. You agree, as we do, to submit to the exclusive jurisdiction of the courts at Bangalore, India.
On the other hand, If You are a Creator situated outside the territory of India and accessing the Platform from such country or territory outside India, then in the unlikely event of dispute between us, this DPA shall be governed by and construed in accordance with the laws of State of Delaware, US and You agree, as we do, to submit to the exclusive jurisdiction of the courts at State of Delaware, US.

EXHIBIT 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 Creator ( i.e., the data exporter) and Graphy (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 contained in Creator Data.

Clause 1

Definitions

For the purposes of the Clauses:

‘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;
‘the data exporter’ means the controller who transfers the personal data;
‘the data importer’ means the processor who agrees to receive from the data exporter the personal data intended for processing on his/her/its behalf after the transfer in accordance with his/her/its 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;
‘the sub-processor’ means any processor engaged by the data importer or by any other sub- processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;
‘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;
‘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

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.
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.
The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
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

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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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;
that it will ensure compliance with the security measures;
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;
to forward any notification received from the data importer or any sub-processor 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;
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 sub-processing 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;
that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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

Clause 3

Third-party beneficiary clause

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.
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.
The data subject can enforce against the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
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:

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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
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;
that it will ensure compliance with the security measures;
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;
to forward any notification received from the data importer or any sub-processor 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;
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 sub-processing 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;
that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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
that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

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;
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;
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
that it will promptly notify the data exporter about:
1. 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;
2. any accidental or unauthorised access; and
3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
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;
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;
to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, 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;
that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
that the processing services by the sub-processor will be carried out in accordance with Clause 11; and
to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
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 sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

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:
1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
2. to refer the dispute to the courts in the Member State in which the data exporter is established.
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

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.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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

Sub-processing

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for sub-processing 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.
The data exporter shall keep a list of sub-processing 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

The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 any more.
The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

Data exporter

The data exporter is: Creator, creator of content on the Platform and user of the Platform

Data importer

The data importer is: Graphy, provider of the Platform

Data subjects

The personal data transferred concern the following categories of Data Subjects: Individuals selected by Creator and included within Creator Data at Creator’s sole discretion, Creator’s Page Users and information collected and processed by the Creator in providing the services. Creator acknowledges and agrees that it controls how any Personal Data contained within Creator Data is processed by Graphy.

Categories of data

The personal data transferred concern the following categories of data: Any Personal Data contained in Creator Data is included at the Creator’s sole discretion and may include first and last name, contact information (company, email, phone, physical address), professional life data, personal life data. Creator acknowledges and agrees that it controls how any Personal Data contained within Creator Data is processed by Graphy.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data: Creator acknowledges that the Platform is not intended for processing of special categories of data as defined by GDPR and agrees that the Creator will not provide (or cause or be provided) any special categories of data for processing as stated in this DPA and that Graphy will not be processing any special categories of data.

Processing operations

The personal data transferred will be subject to the following basic processing activities: Graphy will process Personal Data contained in Creator Data for the purposes of providing the Platform and as set forth in the Platform Terms and this DPA. Processing activities may include: collection, retrieval, organization, storage, alteration, enhancement, aggregation, de-identification, use, and disclosure. Creator acknowledges and agrees that it controls how any Personal Data contained within Creator Data is processed by Graphy.

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):

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.