Data Processing Addendum (DPA)

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) is incorporated into and is subject to the Contract between Nibol S.r.l., with registered office at Via Alfredo Campanini 4, Milan, 20124 Italy (“Nibol” or “Data Processor”), and the client that is a party to the Contract (“Client” or “Data Controller”). Each Data Controller and Data Processor may be referred to herein as a “Party” and jointly as the “Parties”.


Background

A. Article 28 of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) allows any data controller responsible for processing personal data to appoint a natural or legal person, public administration, or any other entity or association to act as data processor for the processing of personal data on the data controller’s behalf among entities that can suitably guarantee compliance with the applicable data protection laws, including with regard to security matters.


B. The Data Processor will provide a platform named “Nibol” offering, among other features, a service to manage office locations and activities to the Data Controller (“Service”) pursuant to the agreement between the Parties concerning Nibol platform (“Contract”) and, in order to provide the Service, Nibol will process personal data acting as a data processor on behalf of the Data Controller. In addition, Nibol will also process Personal Data for its own purposes, including ensuring the correct functioning of the Service and carrying out internal analysis to improve the Service. In these cases, Nibol will act as an autonomous data controller.


C. The Parties agree that clauses 2 to 7 of this DPA apply to any processing of Personal Data carried out by Nibol as Data Processor. The purposes of the processing of Personal with reference to the Service are described in Annex 1 (Description of Processing where Nibol acts as a Data Processor).


D. The Parties agree that clause 8 of this DPA applies where the Parties process Personal Data separately in circumstances where each Party is considered as a data controller in respect of the Personal Data.


E. All Personal Data covered by the Contract will be processed in accordance with Article 28 of the GDPR and all applicable European Union and European Economic Area (“EEA”) laws and regulations (“Data Protection Legislation”).


F. The Parties enter into this DPA in order to ensure that they comply with applicable Data Protection Legislation and establish safeguards and procedures for the lawful processing of personal data.


Agreed Terms

It is understood that the above background and the Annexes of this DPA are an integral and substantive part hereof, the Parties agree as follows.


1. Definitions

1.1 Unless otherwise defined in this DPA, all capitalised terms used herein shall have the meaning given to them in the GDPR. In the event of any conflict or inconsistency in terms of data protection safeguards between this DPA and GDPR, this DPA will prevail.

a. “Contract” has the meaning given to it in recital B.


b. “DPA” has the meaning given to it at the beginning of this agreement.


c. “Data Controller” has the meaning given to it at the beginning of this agreement.


d. “Data Processor” has the meaning given to it at the beginning of this agreement.


e. “Data Protection Legislation” has the meaning given to it in recital E.


f. “EEA” has the meaning given to it in recital E.


g. “GDPR” has the meaning given to it in recital A.


h. “Party” or “Parties” has the meaning given to it at the beginning of this agreement.


i. “Personal Data” means Personal Data relating to Data Subjects processed in connection with the Service provided by the Data Processor to the Data Controller.


j. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed.


k. “Service” has the meaning given to it in recital B.


l. “Standard Contractual Clauses”: means the Controller to Processor Standard Contractual Clauses, Module 2 (transfer controller to processor) of the European Commission Implementing Decision (EU) 2021/914 which can be found under Annex 2.


m. “Sub-processor” means an entity engaged by the Data Processor to assist it in (or who undertakes any) processing of Personal Data in the performance of the Data Processor’s obligations pursuant to the DPA.


2. Data Protection Roles

2.1 The Parties agree that:

a. The Client acts as the Data Controller regarding the Personal Data processed by Nibol in the provision of the Service;


b. Nibol acts as the Data Processor of the Personal Data for the provision of the Service; and


c. this DPA regulates the relationship between the Parties in terms of respective duties and obligations concerning the processing of Personal Data by the Data Processor in the provision of the Service.


3. Obligations of the Data Processor 

3.1 To the extent that Nibol is acting as a data processor, the Data Processor agrees to:

a. ensure the confidentiality of the Personal Data that learns or becomes aware of in the performance of the Service or the Contract and to comply with the instructions given from time to time by the Data Controller;


b. only process the data related to the operations entrusted to it on the basis of the instructions of the Data Controller, unless required to do so by Union or Member State law to which the Data Processor is subject;


c. process and retain Personal Data within the EEA and, in the event of transfers of Personal Data to countries outside the EEA, to adopt the guarantees required by the GDPR;


d. in accordance with article 32 of the GDPR, implement adequate operational, technical, and organizational measures to eliminate or, in any case, to minimize any risk of destruction or loss of data, whether or not accidental, and of unauthorized or non-compliant access processing, taking into account (1) the current state of the art and technical progress, (2) the risks associated with the data processed, and (3) the nature of the data. These measures include, among others: (i) pseudonymization and encryption of personal data (where possible); (ii) the ability to ensure the confidentiality, integrity, availability, and resilience of processing systems and services; (iii) the ability to restore the availability and access of personal data in a timely manner in the event of a physical or technical incident;


e. assist the Data Controller in ensuring its compliance with its obligations under articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to the Data Processor;


f. identify in writing the personnel authorized to process personal data and to provide them with instructions on the operations to perform in compliance with Data Processor’s obligations under this DPA, ensuring that (i) the instructions given are duly observed, and (ii) the authorized personnel are under an appropriate obligation of confidentiality; 


g. cooperate in good faith with the Data Controller to ensure compliance with this DPA, assist the Data Controller in complying with its obligations under the Data Protection Legislation, and make available to the Data Controller all information necessary to demonstrate compliance with the Data Protection Legislation;


h. allow for and contribute to audits conducted by the Data Controller or by its auditors or authorized agents on Data Processor’s systems and locations used to process Personal Data. Audits carried out must be preceded by reasonable prior notice to the Data Processor and, in any case, on a date agreed with the Data Processor. Any information gathered on Data Processor’s activities will be subject to confidentiality, except where mandatory applicable laws (including, but not limited to, the applicable Data Protection Legislation) or binding orders from law enforcement authorities (including, but not limited to, the Supervisory Authority) require information to be disclosed. The Data Controller shall bear all the costs incurred for the audits;


i. use the services of the Sub-processors approved by the Data Controller, for the sole and exclusive purpose of delivering the Service and subject to this DPA. The Data Controller hereby authorizes the Data Processor to engage Sub-processors subject to the conditions that the Data Processor: (1) enters into a written agreement with the Sub-processor containing the same obligations as set out in this DPA or, in any case, ensures that the Sub-processor offers no fewer guarantees than those offered by the Data Processor in this DPA, and (2) remains fully liable for the actions or omissions of the Sub-processor. A current list of the Sub-processors involved in the provision of the Service is available within the Nibol Admin account of the Data Controller or here [www.nibol.com/sub-processors] (List of Sub-processors). The access to the above link could be protected by a password that the Data Controller will receive, upon written request, from Nibol. The Data Processor will update the List of Sub-processors to reflect any addition or replacement to Sub-processors. The Data Controller will periodically check the list, in any case at least once per month, and may reasonably object to the use of a new Sub-processor on legitimate grounds, subject to the termination and liability clauses of the Contract. The Data Controller acknowledges that these Sub-processors are essential for the provision of the Service and that objecting to the use of a Sub-processor may prevent Nibol from offering the Service to the Data Controller;


j. maintain written records of all types of processing activities carried out on behalf of the Data Controller, where applicable in relation to the organization of the Data Processor or to the nature of the processing, in accordance with article 30 of the GDPR;


k. notify the Data Controller, unless legally prohibited from doing so, without undue delay, after having become aware of any contact, communication or correspondence it may receive from the relevant Supervisory Authority, courts or law enforcement authorities in relation to the processing of Personal Data;


l. immediately inform the Data Controller when, in the Data Processor’s opinion, an instruction received from the Data Controller violates the GDPR or other applicable national or European Union laws or regulations related to data protection;


m. assist the Data Controller with appropriate technical and organizational measures to comply with all data subjects’ requests that the Data Controller may receive. The Data Processor agrees to promptly notify the Data Controller about any request received directly from the Data Subject.


4. Obligations of the Data Controller

4.1 The Data Controller agrees that in order for the Data Processor to provide the Service, the Data Controller shall provide the Data Processor with Personal Data.


4.2 The Data Controller represents and warrants that it has an appropriate legal basis (e.g., Data Subject’s consent, legitimate interest, authorization from the relevant Supervisory Authority, etc.) to process and disclose Personal Data to the Data Processor as part of the provision of the Service.


5. Return and Deletion of Data

5.1 Upon the expiration of the Contract, the Data Processor agrees to delete or anonymize all Personal Data within the following 60 days.


5.2 If requested by the Data Controller within thirty (30) days prior to the expiration or termination of the Service, the Data Processor will return the Personal Data to the Data Controller in accordance with the terms of this DPA and applicable Data Protection Laws.


5.3 Upon written request of the Data Controller, the Data Processor must provide a statement to the Data Controller certifying the return or deletion of Personal Data, or both, as applicable.


5.4 The Data Processor’s obligations under clauses 5.1 and 5.2 will be subject to mandatory applicable laws (including, but not limited to, the Applicable Data Protection Laws) or binding orders from competent judicial, law enforcement, or regulatory authorities (including, but not limited to, the Supervisory Authority) that prevent the Data Processor from complying with its obligations. In such cases, the Data Processor will remain bound to this DPA (even after its expiration or earlier termination) regarding any Personal Data so retained, and the Data Processor must not process any Personal Data for any other purpose than to comply with any such legal obligations or binding orders.


5.5 The Data Processor may retain Personal Data which is stored under regular computer backup operations in compliance with the Data Processor’s disaster recovery and business continuity protocols; provided, however, that Data Processor must not process any Personal Data retained in backup storage for any purpose other than to provide the Service and that such Personal Data will be deleted, in any case, after 90 days.


6. Data Breach

6.1 The Data Processor agrees to:

a. notify the Data Controller of any Personal Data Breach as soon as possible, and in any event no later than 48 (forty-eight) hours after the Data Processor becomes aware of the Personal Data Breach, to enable the Data Controller to expeditiously implement its response program;

b. cooperate with the Data Controller to investigate any Personal Data Breach and provide the Data Controller with all the information requested by it in relation to the Personal Data Breach;

c. take appropriate actions to contain and mitigate any Personal Data Breach, fully cooperating with the Data Controller to develop and implement an action plan to address the Personal Data Breach in accordance with applicable laws and regulations; and

d. where the Data Protection Legislation requires that the Personal Data Breach be notified to relevant Supervisory Authorities and affected Data Subjects, follow and comply with any instructions from the Data Controller.


6.2 The Data Processor agrees that the Data Controller will be entitled to determine the measures to be taken to comply with Applicable Data Protection Legislation and to remediate any risk, including, without limitation: (1) whether any notice is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others, as may be required by Applicable Data Protection Legislation or at the Data Controller’s sole discretion; and (2) the contents of any such notice, whether any type of remediation may be offered to affected Data Subjects under the Data Controller’s responsibility, and the nature and extent of any such remediation.


7. Transmissions

7.1 Personal Data transmitted by the Data Processor in connection with the Service through the Internet shall be reasonably encrypted. The Parties acknowledge, however, that the security of transmissions over the Internet cannot be guaranteed.


7.2 If any security breach or personal Data Breach is suspected, the Data Processor may suspend the Data Controller’s use of the Service via the Internet immediately pending an investigation, provided that the Data Processor serves notice of any such suspension as soon as reasonably possible and takes all reasonable measures to promptly restore the use of the Service via the Internet and cooperate with Data Controller in order to continue the provision of the Service via other communication channels.


8. Nibol’ Role as Data Controller

8.1 The Parties acknowledge and agree that to the extent Nibol processes Personal Data involved in the Service to (1) establish, exercise, or defend rights of Nibol, including proving the correct execution of the Service, (2) comply with legal or regulatory obligations applicable to the processing and retention of data to which Nibol is subject, (3) ensure the correct functioning of the website/mobile application through which the Service is provided, including by means of cookies and other tracking technologies, (4) carry out marketing activities, including sending communications about promotions, surveys, product news and offers about Nibol (subject to prior specific consent), and (5) analyze, develop and improve Nibol’s products and services, Nibol is acting as a data controller with respect to the processing of Personal Data it receives from or through the Data Controller.


8.2 When both Parties act as autonomous controllers, each Party undertakes to process Personal Data in accordance with Data Protection Legislation. In particular, each Party will be liable to make sure it has a legal basis for collecting and processing the Personal Data and will provide transparent information to data subjects about the processing.


8.3 Unless it is prevented to do so under applicable legislation, each Party shall provide the other Party with reasonable cooperation and assistance, as applicable from time to time, in connection with:

a. its compliance with Data Protection Legislation in relation to the Personal Data; 

b. any request or other communication made in relation to data subject rights; and

c. any notice or other communication received from a supervisory authority in connection with the processing of the Personal Data or the other Party’s compliance with the Data Protection Legislation provided that a Party shall not be required to incur material costs or expenses in providing such cooperation and assistance.


9. General

9.1 This DPA will remain in effect for the term of the Contract and, in any event, during the performance of the Service, in which case it will terminate upon completion of the Service, subject to clause 5 (Return and Deletion of Data).


9.2 The Data Controller and the Data Processor agree to renegotiate the terms of this agreement in good faith if this were to be necessary to implement changes to Data Protection Legislation.


9.3 In the event of a conflict between the terms of this DPA and the Contract, this DPA will prevail.


9.4 This DPA forms part of the Contract entered into between the Data Controller and the Data Processor that incorporates this DPA by reference, and governs the processing of personal data by Nibol in providing its Service pursuant to the Contract.


Annexes:

1. Description of Processing where Nibol acts as a Data Processor


2. Standard Contractual Clauses


ANNEX 1

Description of Processing where Nibol acts as a Data Processor

1. Data Subjects

Personal Data that may be processed concerns mainly the following categories of data subjects: employees or potential employees, external visitors invited by employees


2. Categories of Personal Data

Personal Data that may be processed concerns mainly the following categories of personal data: contact data (name and surname, email address, address), personal image, date of birth  (only in case of activation of the feature Nibol Safe)


3. Special Categories of Personal Data (If Applicable)

Personal Data which may be processed concerns mainly the following Special Categories of Personal Data: health status (only in case of activation of the feature Nibol Safe)


4. Place of storage and processing of data 

  • Italy
  • European Union
  • Extra EU: USA


5. Processing Operations

Personal Data processed will be subject only to the processing activities necessary for the performance of the Service.


ANNEX 2

STANDARD CONTRACTUAL CLAUSES at Nibol

EU Standard Contractual Clauses, Module 2 (Controller to Processor)


Last Updated: February 8, 2022

Adopted by the European Commission as of September 27, 2021

Capitalized terms used but not defined in these Clauses (including the Annexes) have the meanings given to them in the Nibol Data Processing Addendum into which these Clauses are incorporated (“DPA”).


SECTION I

1. Purpose and scope

a. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)[1] for the transfer of personal data to a third country.


b. The Parties:

i. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex 2.I.A (hereinafter each ‘data exporter’), and

ii. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex 2.I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).


c. These Clauses apply with respect to the transfer of personal data as specified in Annex 2.I.B.


d. The Appendix to these Clauses containing the Annexes referred to there informs an integral part of these Clauses.


2. Effect and invariability of the Clauses

a. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.


b. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.


3. Third-party beneficiaries

a. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

i. Clause 1, Clause 2, Clause 3, Clause 6;

ii. Clause 7.1(b), 7.9(a), (c), (d) and (e);

iii. Clause 8(a), (c), (d) and (e);

iv. Clause 11(a), (d) and (f);

v. Clause 12;

vi. Clause 14.1(c), (d) and (e);

vii. Clause 15 (e);

viii. Clause 17(a) and (b);


b. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU)2016/679.


4. Interpretation

Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.


These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU)2016/679.


These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.


5. Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.


6. Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex 2.I.B.


SECTION II – OBLIGATIONS OF THE PARTIES

7. Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.


7.1 Instructions

a. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.


b. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.


7.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex 2.I.

B, unless on further instructions from the data exporter.


7.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex 2.II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.


7.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.


7.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex 2.I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular, the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).


7.6 Security of processing

a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due to account of the state of the art, the costs of implementation, the nature, scope, context, and purpose(s) of processing, and the risks involved in the processing for the data subjects. The Parties shall, in particular, consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex 2.II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.


b. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management, and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.


c. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and an approximate number of data subjects and personal data records concerned), its likely consequences, and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.


d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular, to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.


7.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex 2.I.B.


7.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

i. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

iii. the onward transfer is necessary for the establishment, exercise, or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

iv. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.


Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.


7.9 Documentation and compliance

a. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.


b. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.


c. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.


d. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.


e. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

8. Use of sub-processors

a. The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.


b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.[3] The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 78.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.


c. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.


d. The data importer shall remain fully responsible to the data exporter for the performance of the subprocessor's obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.


e. The data importer shall agree to a third-party beneficiary clause with the sub-processor whereby–in the event, the data importer has factually disappeared, ceased to exist in law, or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.


9. Data subject rights

a. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.


b. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex 2.II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.


c. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.


10. Redress

a. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.


b. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.


c. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

i. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

ii. refer the dispute to the competent courts within the meaning of Clause18.


d. The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.


e. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.


f. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.


11. Liability

a. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.


b. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.


c. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.


d. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.


e. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.


f. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.


g. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.


12. Supervision

a. The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex 2.I.C, shall act as competent supervisory authority.


b. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.


SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

13. Local laws and practices affecting compliance with the Clauses

a. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.


b. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

iii. any relevant contractual, technical, or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.


c. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.


d. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.


e. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). 


f. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g., technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.


14. Obligations of the data importer in case of access by public authorities

14.1 Notification

a. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.


b. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.


c. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, the number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).


d. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.


e. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.


14.2 Review of legality and data minimization

a. The data importer agrees to review the legality of the request for disclosure, in particular, whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).


b. The data importer agrees to document its legal assessment and any challenge to their quest for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.


c. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.


SECTION IV – FINAL PROVISIONS

15. Non-compliance with the Clauses and termination

a. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.


b. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).


c. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

ii. the data importer is in substantial or persistent breach of these Clauses; or

iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.


In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.


d. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.


e. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.


16. Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Italy.


17. Choice of forum and jurisdiction

a. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.


b. The Parties agree that those shall be the courts of Italy.


c. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.


d. The Parties agree to submit themselves to the jurisdiction of such courts.


EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieve through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.


ANNEX 2.I

A. LIST OF PARTIES

Data exporter(s):

Name: the Client as defined in the Contract.

Address: As detailed in the Contract.

Contact person’s name, position and contact details: as detailed in the communications between us from time to time.

Activities are relevant to the data transferred under these Clauses: usage of the platform “Nibol” offering, among other features, a service to manage office locations and activities.

Role: Controller


Data importer(s):

Name: Nibol S.r.l.

Address: Via Alfredo Campanini 4, Milan, 20124 Italy

Contact person’s name, position, and contact details: Riccardo Suardi, privacy@nibol.com

Activities relevant to the data transferred under these Clauses: provision of the platform “Nibol” offering, among other features, a service to manage office locations and activities.

Role: Processor


B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred: Data exporter’s employees, platform’s users.


Categories of personal data transferred: common data (email address, name, and surname, etc.).


Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: health data, in case of use of the add-on Nibol Safe


The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous basis.


Nature of the processing: collection, storage, destruction.


Purpose(s) of the data transfer and further processing: the performance of a service.


The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: for the duration of the Contract and, in any case, until the Service is used.


For transfers to (sub-) processors, also specify the subject matter, nature, and duration of the processing: see the sub-processors list [www.nibol.com/sub-processors].


C. COMPETENT SUPERVISORY AUTHORITY

Italian Supervisory Authority


ANNEX 2.II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Nibol agrees to implement adequate operational, technical, and organizational measures to eliminate or, in any case, to minimize any risk of destruction or loss of data, whether or not accidental, and of unauthorized or non-compliant access processing, taking into account:

1. the current state of the art and technical progress,

2. the risks associated with the data processed, and

3. the nature of the data.

These measures include, among others:

i. pseudonymization and encryption of personal data (where possible);

ii. the ability to ensure the confidentiality, integrity, availability, and resilience of processing systems and services; 

iii. the ability to restore the availability and access of personal data in a timely manner in the event of a physical or technical incident.