NetSfere Support Services

Definitions

For purposes of this Policy, the terms below shall have the meanings set forth below. Capitalized terms that are used but not otherwise defined in this Policy shall have the meanings set forth in the Agreement.

• “Policy Effective Date” means, as applicable, (a) 25 May 2018, if the parties agreed to this Policy prior to or on such date; or (b) the date on which the parties agreed to this Policy, if such date is after 25 May 2018.
• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
• “Audit Reports” has the meaning given in Section 5.4.4.
• “Customer Personal Data” means any personal data contained within the data provided to or accessed by ICS by or on behalf of Customer or Customer end users in connection with the Services.
• “EEA” means the European Economic Area.
• “EU” means the European Union.
• “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.
• “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
• “Information Security Incident” means a breach of ICS’ security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in ICS’ possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, unauthorized access to encrypted data, and other network attacks on firewalls or networked systems.
• “Standard Contractual Clauses” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
• “Security Documentation” means all documents and information made available by ICS under Section 5.4.1 (Reviews of Security Documentation).
• “Security Measures” has the meaning given in Section 5.1.1 (ICS’ Security Measures).
• “Services” means the services and/or products to be provided by ICS to Customer under the Agreement.
• “Subprocessors” means third parties authorized under this Policy to process Customer Personal Data in relation to the Services.
• “Term” means the period from the Policy Effective Date until the end of ICS’ provision of the Services.
• “Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
• “Transfer Solution” means the Standard Contractual Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
• The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Policy have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.

Duration of Policy

This Policy will take effect on the Policy Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, ICS’ deletion of all Customer Personal Data as described in this Policy.

Processing of Data

Roles and Regulatory Compliance; Authorization.

• Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
1. the subject matter and details of the processing are described in Annex 1;
2. ICS is a processor of that Customer Personal Data under the European Data Protection Legislation;
3. Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
4. each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
• Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to ICS that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of ICS as another processor, have been authorized by the relevant controller.

Scope of Processing.

• Customer’s Instructions. By entering into this Policy, Customer instructs ICS to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Policy; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by ICS as constituting instructions for purposes of this Policy.
• ICS’ Compliance with Instructions. ICS will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless European Data Protection Legislation to which ICS is subject requires other processing of Customer Personal Data by ICS, in which case ICS will notify Customer (unless that law prohibits ICS from doing so on important grounds of public interest).

Data Deletion

Deletion on Termination. On expiry of the Term, Customer instructs ICS to delete all Customer Personal Data (including existing copies) from ICS’ systems in accordance with applicable law as soon as reasonably practicable, unless applicable law requires otherwise, or it is not technically or commercially feasible to do so.

Data Security

ICS’ Security Measures, Controls and Assistance.

ICS’ Security Measures. ICS will implement and maintain technical and organizational security measures, as further described in Appendix 2 to Annex 2, to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data (the "Technical and Organizational Security Measures"). ICS may update or modify the Technical and Organizational Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.

Security Compliance by ICS Staff. ICS will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.

ICS’ Security Assistance. ICS will (taking into account the nature of the processing of Customer Personal Data and the information available to ICS) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:

1. implementing and maintaining the Technical and Organizational Security Measures in accordance with Section 5.1.1 (ICS’ Technical and Organizational Security Measures);
2. complying with the terms of Section 5.2 (Information Security Incidents); and
3. providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Policy.

Information Security Incidents

Information Security Incident Notification. If ICS becomes aware of an Information Security Incident, ICS will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimise harm and prevent a recurrence.

Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps ICS recommends Customer take to address the Information Security Incident.

Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).

No Acknowledgement of Fault by ICS. ICS’ notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by ICS of any fault or liability with respect to the Information Security Incident.

Customer’s Security Responsibilities and Assessment.

Customer’s Security Responsibilities. Customer agrees that, without prejudice to ICS’ obligations under Section 5.1 (ICS’ Technical and Organizational Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):

• Customer is solely responsible for its use of the Services, including:
1. making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
2. securing the account authentication credentials, systems and devices Customer uses to access the Services;
3. securing Customer’s systems and devices ICS uses to provide the Services; and
4. backing up its Customer Personal Data; and
• ICS has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of ICS’ and its Subprocessors’ systems (for example, offline or on-premises storage).

Customer’s Security Assessment.

1. Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Technical and Organizational Security Measures and ICS’ commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation.
2. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Technical and Organizational Security Measures implemented and maintained by ICS as set out in Section 5.1.1 (ICS’ Technical and Organizational Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.

Reviews and Audits of Compliance

Customer may audit ICS’ compliance with its obligations under this Policy up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). ICS will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit applicable to the Services.

If a third party is to conduct the audit, ICS may object to the auditor if the auditor is, in ICS’ reasonable opinion, not suitably qualified or independent, a competitor of ICS, or otherwise manifestly unsuitable. Such objection by ICS will require Customer to appoint another auditor or conduct the audit itself.

To request an audit, Customer must submit a detailed proposed audit plan to GDPR Compliance Officer at IC-GDPR@infinite.com at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. ICS will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise ICS security, privacy, employment or other relevant policies). ICS will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require ICS to breach any duties of confidentiality.

If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and ICS confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.

The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and ICS’ health and safety or other relevant policies, and may not unreasonably interfere with ICS business activities.

Customer will promptly notify ICS of any non-compliance discovered during the course of an audit and provide ICS any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Policy. The audit reports are Confidential Information of the parties under the terms of the Agreement.

Any audits are at Customer’s expense. Customer shall reimburse ICS for any time expended by ICS or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at ICS’ then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

The parties agree that this Section 5.4 shall satisfy ICS’ obligations under the audit requirements of the Standard Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).

Impact Assessments and Consultations

ICS will (taking into account the nature of the processing and the information available to ICS) reasonably assist Customer in complying with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:

• making available for review copies of the Audit Reports or other documentation describing relevant aspects of ICS’ information security program and the security measures applied in connection therewith; and
• providing the information contained in the Agreement including this Policy.

Data Subject Rights

Customer’s Responsibility for Requests. During the Term, if ICS receives any request from a data subject in relation to Customer Personal Data, ICS will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.

ICS’ Data Subject Request Assistance. ICS will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR (Articles 12-23). Customer shall reimburse ICS for any such assistance beyond providing self-service features included as part of the Services at ICS’ then-current professional services rates, which shall be made available to Customer upon request.

Data Transfers

Data Storage and Processing Facilities. ICS may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere ICS or its Subprocessors maintains facilities.

Transfers of Data Out of the EEA.

• ICS’ Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), ICS will make such transfers in accordance with the Standard Contractual Clauses attached hereto as Annex 2.
• Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees to enter into the Standard Contractual Clauses attached hereto as Annex 2.

Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), ICS will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, Customer and ICS agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) ICS or its relevant Affiliate will act on its own behalf and/or on behalf of ICS’ Affiliates as the data importers.

Subprocessors

Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of ICS’ Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Standard Contractual Clauses as described in Section 9.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by ICS of the processing of Customer Personal Data if such consent is required under the Standard Contractual Clauses.

Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available upon request to the GDPR Compliance Officer at IC-GDPR@infinite.com (as may be updated by ICS from time to time in accordance with this Policy).

Requirements for Subprocessor Engagement. When engaging any Subprocessor, ICS will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Policy) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. ICS shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.

Opportunity to Object to Subprocessor Changes.

When any new Third Party Subprocessor is engaged during the Term, ICS will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).

Customer may object to any new Third Party Subprocessor by providing written notice to ICS within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. In the event Customer objects to a new Third Party Subprocessor, Customer and ICS will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to ICS.

Processing Records

ICS’ Processing Records. Customer acknowledges that ICS is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which ICS is acting and, where applicable, of such processor’s or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to ICS, and will ensure that all information provided is kept accurate and up-to-date.

Liability

Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Policy, and the Standard Contractual Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).

Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.

Analytics

Customer acknowledges and agrees that ICS may create and derive from processing related to the Services anonymised and/or aggregated data that does not identify Customer or any natural person, and use, publicise or share with third parties such data to improve ICS’ products and services and for its other legitimate business purposes.

Notices

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by ICS to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to ICS’ primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

Annex 1

Subject Matter and Details of the Data Processing

Subject Matter	ICS’ provision of the Services to Customer.
Duration of the Processing	The Term plus the period from the expiry of the Term until deletion of all Customer Personal Data by ICS in accordance with the Policy.
Nature and Purpose of the Processing	ICS will process Customer Personal Data for the purposes of providing the Services to Customer in accordance with the Policy.
Categories of Data	Required Data: Email address, display name, message content (if messages are sent/received). Optional Data: Profile picture, 3rd party credentials, any information under custom contract attributes, and credit card information.
Data Subjects	Data subjects include the individuals about whom ICS Processes data in connection with the Services.
Processing Operations	Personal Data will be transferred from the Customer to ICS’ platform to facilitate communication engagement between Customer and its end users. The Service will consist of providing a communication platform for the Customer to use in order to on-board and interact with end users as well as analyze their use of the product and /or Services.

Annex 2

Standard Contractual Clauses to be executed to permit ICS to Receive and Process Personal Data

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, as well for the purposes of Chapter V of the GDPR, or any related EU delegated acts or implementing acts, Customer and ICS have agreed on the following Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1: Definitions

For the purposes of the Clauses:

1. “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, or as defined in Regulation 2016/679, as amended or replaced from time to time;
2. the “data exporter” means the controller who transfers the personal data;
3. the “data importer” means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC and/or under Regulation 2016/679, as amended or replaced from time to time;
4. the “subprocessor” means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
5. 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;
6. “technical and organizational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

The parties agree that the above definitions apply only for the Clauses contained in this Appendix 2.

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 subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
• 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:

1. 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;
2. 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;
3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2;
4. 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, unauthorized 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;
5. that it will ensure compliance with the security measures;
6. 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 and/or Regulation 2016/679;
7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the Data Importer

The data importer agrees and warrants:

1. 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;
2. 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;
3. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
4. that it will promptly notify the data exporter about:
• 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,
• any accidental or unauthorized access, and
• any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
5. 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;
6. 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;
7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
10. to send promptly a copy of any subprocessor 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 subprocessor 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 subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
• If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and Jurisdiction

• 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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
• The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9: Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10: Variation of the Contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Subprocessing

• The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
• The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
• The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
• The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12: Obligation after the Termination of Personal Data Processing Services

• The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
• The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1

This Appendix forms part of the Clauses and must be completed and signed by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data Exporter

The data exporter is the entity identified as “Customer” in the Policy.

Data Importer

Infinite Convergence Solutions, Inc.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

• Data subjects may include customers’ customers, employees, suppliers, and end users.

Categories of data

The personal data transferred concern the following categories of data (please specify):

• Required Data (Data subject must provide this information for obtaining service)
• Optional Data (Data subject may optionally provide this information for a better service experience, but this information is not mandatory)

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

• There is no special category of data

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

• Personal data may be transferred to locations outside of the European Union for the purpose of debugging, statistical reporting, operational maintenance, billing, and for the purpose of providing service to the data subject.
• Personal data will follow the data subject’s current country of location for the purpose of message delivery.

Appendix 2

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) include the following:

Information Security Program
ICS maintains an information security program (including the adoption and enforcement of internal policies and procedures) designed to:

1. Secure customer data (including personal data) against accidental or unlawful loss, access, or disclosure
2. Identify reasonably foreseeable and internal risks to security and unauthorized access to the ICS Network
3. Mitigate security risks through regular testing, monitoring, and risk assessment

The information security program includes the measures identified below.

• Product Security
  ICS products and services are electronically accessible to customers, users, customer employees and contractors, ICS employees and contractors, and any other person as necessary to provide the associated services. ICS provides and manages access controls for appropriate access to the ICS products. ICS maintains corrective action and incident response plans to respond to potential security threats.
  1. Network Security Hardening
     ICS implements security measures for its products prior to deployment.
  2. Transmission Control
     ICS implements measures to prevent personal data from being read, copied, altered, or deleted by unauthorized parties during the transmission thereof.
  3. Secure Storage
     ICS implements measures to secure storage of personal data from unauthorized access.
• Physical Security
1. Access Control to Processing Areas
   ICS implements measures in order to prevent unauthorized persons from gaining access to the data processing equipment used to process personal data.
2. Access Control to Data Processing Systems
   ICS assigns unique and individual credentials and utilizes ID procedures (e.g. no re-use of the same ID within a set period of time, etc.).
• Availability Control
  ICS implements measures to ensure that personal data are protected from accidental destruction or loss.
• Separation of Process for Different Purposes
  ICS implements suitable measures to ensure that personal data intended for different purposes can be processed separately.
• Instructional Control
  ICS ensures that personal data may only be processed in accordance with the agreement and customer’s instructions.

Continued Evaluation
ICS conducts periodic reviews of the security of its information security program as measured against industry security standards and its policies and procedures. ICS continually evaluates the security of its products and services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.