DATA PROCESSING AGREEMENT

Updated: Monday , September 14, 2020 - 15:25 GMT

AGREEMENT ENTERED INTO BY OUTSYSTEMS AS CONTROLLER AND ITS SERVICES PROVIDER AS PROCESSOR

WHEREAS:

A.      OutSystems (hereinafter “OutSystems” or the “Controller”) and Services Provider (hereinafter the “Services Provider” or the “Processor”) have executed an agreement (hereinafter Services Agreement) for the provision of certain services and/or provide goods or deliverables (collectively referred to as "Services");

B.      The execution of such Services Agreement and the provision of Services by the Services Provider entails the Processing of Personal Data on behalf of OutSystems; and

C.      OutSystems and the Services Provider intend to regulate the Processing of Personal Data by the latter on behalf of OutSystems in compliance with the applicable Data Protection Laws.

OutSystems and the Services Provider (jointly referred to as “Parties”) enter into this Data Processing Agreement (also referred to as “Agreement”), which is regulated by the following clauses:

1. DEFINITIONS

Capitalized terms shall have the meanings set out below. Any capitalized terms not defined in this Data Processing Agreement shall have the meanings set out in the the applicable Data Protection laws:

Adequate Country” means a country or territory outside the EU/EEA that is recognized for the purposes of Data Protection Laws by virtue of a decision of the European Commission as offering guarantees which ensure an adequate level of protection essentially equivalent to that ensured within the EU for Personal Data, in accordance with article 45 of the GDPR.
Appropriate Safeguards” means any of the appropriate safeguards referred to in article 46 of the GDPR.
Breach Event” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed as defined in article 4 (12) of the GDPR.
Controller” means the natural or legal person who determines the purposes and means of the Processing of Personal Data, who in this Data Processing Agreement is OutSystems.
Data Subject” means the identified or identifiable natural person whose Personal Data is Processed.
Data Protection Laws” means all national, state, regional and/or local laws applicable to data privacy and to the Processing of “Personal Data” (defined below) including but not limited to, as applicable, the General Data Protection Regulation, (Regulation (EU) 2016/679) and the EU e-Privacy Directive (2002/58/EC) as may be amended by the proposed Regulation on Privacy and Electronic Communications, in each case as implemented into local laws applicable to the relevant Controller and/or Processor(s) with respect to the Personal Data (as relevant), any legislation that, in respect of a member state of EU, converts into domestic law the GDPR, the proposed Regulation on Privacy and Electronic Communications, or any other law relating to data protection, the Processing of Personal Data and privacy. The term Data Protection Laws shall be deemed to include any successor legislation or replacements for any of the laws referenced in this definition and includes all replacement laws and any similar laws governing the parties’ activities in the European Union or any other applicable jurisdiction, and, to the extent the GDPR is no longer applicable in the United Kingdom, any implementing legislation or legislation having equivalent effect in the United Kingdom.
EU” means the European Union.
EEA” means European Economic Area.
GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). References to “articles” or “chapters” of the GDPR shall be construed accordingly.
OutSystems Personal Data” means any Personal Data Processed by the Services Provider or another Sub-Processor on behalf of OutSystems, pursuant to or in connection with the Services Agreement.
Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, a location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined on article 4 (1) of the GDPR, as well as the categories of data referred to in Exhibit A.
Personnel” means the Services Provider’s employees or other individuals with a contractual relationship with Services Provider.
Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, as defined in article 4 (2) of the GDPR.
Processed” or “Process” shall be construed accordingly.
Processor” means the Services Provider as the natural or legal person which processes Personal Data on behalf of the Controller.
Restricted Transfers” means the transfer of Personal Data to a Third Country. Includes transfers of OutSystems Personal Data from OutSystems to the Services Provider and onward transfers of OutSystems Personal Data from a Sub-Processor to another Sub-Processor or between two establishments of a Sub-Processor.
Transfer”, “Transferred” or “Transferring” shall be construed accordingly.
Services” means the Services provided by the Services Provider to OutSystems as defined on the Services Agreement.
Standard Contractual Clauses” means the Standard Contractual Clauses for the transfer of Personal Data to processors established in third countries, approved by the Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council as included in Exhibit B, which forms part of this Data Processing Agreementn andbinds the Parties.
Sub-Processor” means an entity engaged by the Processor, exclusively for the Processing activities to be carried out pursuant to or in connection with theServices Agreement on behalf of OutSystems and in accordance with its instructions, as transmitted by OutSystems.
Third Country” means a country or territory outside the EU/EEA that is not an “Adequate Country”.

2. PROCESSING OF PERSONAL DATA

2.1      Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, OutSystems is the Controller and the Services Provider is the Processor.

2.2      Processing of OutSystems’ Personal Data. The Services Provider shall Process Personal Data as confidential information and shall only Process Personal Data on behalf of OutSystems and in accordance with the requirements of the Data Protection Laws, OutSystems’ documented instructions and Exhibit A attached hereto, as necessary for the provision of the agreed Services by the Services Provider. Services Provider must inform OutSystems immediately in case it believes that its instructions infringe Data Protection Laws. Service Provider must inform OutSystems if it considers the instructions provided to be insufficient.

2.3      Details of the Processing. The subject-matter of Processing of Personal Data by the Services Provider is the performance of the Services pursuant to the Services Agreement. The description and purpose of the Processing, the categories of Data Subjects and the types of Personal Data Processed under this Data Processing Agreement are further specified in Exhibit A to this Data Processing Agreement.

2.4      Duration of the Processing. The Processing shall be carried out for the duration of the Services Agreement, unless otherwise agreed upon in writing by the Parties.

3. SECURITY

3.1      The Services Provider shall use appropriate technical, organizational and administrative security measures to protect the Personal Data Processed on behalf of OutSystems against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction.

3.2      Security measures shall include, but are not limited to:

(i)      access controls to ensure that the access to and the Processing of Personal Data is strictly limited to those individuals who need to know or have access to such Personal Data for the performance of their specific duties or tasks (need-to-know) and strictly related to the provision of the Services;
(ii)      encryption and other security technologies to protect Personal Data from unauthorized access;
(iii)      information and data properly backed up on a daily basis and that arrangements for recovery processes are in place unless otherwise established in any other agreement entered into between the parties;
(iv)      proper measures to enable continuation of Services, as far as reasonably possible, in case of the occurrence of an unexpected disruption event.

3.3      Services Providers shall regularly test and assess the effectiveness of the technical, organizational, and administrative measures in place for ensuring the security of the processing and ensure that such security measures are continually improved in line with technological developments.

3.4      Services Provider shall ensure that its Personnel are fully aware of the risks associated with information and data security issues.

4. SERVICES PROVIDER’S PERSONNEL

4.1      Services Provider ensures that its Personnel who has access or processes OutSystems Personal Data is subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4.2      Upon OutSystems’ request, the Services Provider shall provide evidence that its Personnel are subject to confidentiality, according with clause 4.1 above.

5. COOPERATION

5.1      Cooperation with OutSystems. Services Provider shall fully cooperate with and assist OutSystems in relation to the response to any notifications from a supervisory authority, in connection with the Personal Data, including without limitation, the preparation of supporting documentation to be submitted to the relevant supervisory authority and provision of supporting documentation sufficient to evidence that the Services Provider is legally bound by the terms of this Agreement.
In addition, Services Provider shall provide OutSystems with all assistance and cooperation as may be deemed necessary in the event of a Breach Event, notably in the preparation of the relevant notifications,in the implementation of the necessary mitigation measures and in the response to any Data Subject inquiry or Breach Event response action requiring access to information stored or Processed by the Services Provider on behalf of OutSystems, without charging any additional costs to OutSystems.
Services Provider shall, and shall procure that the Sub-Processors shall, promptly provide to OutSystems, upon request, all the information in its possession or control in relation to the Processing of the Personal Data under this Agreement and provide all assistance and cooperation as may reasonably be required for OutSystems to assess whether the Processing of the Personal Data is in accordance with this Agreement.
The Services Provider shall cooperate fully with and assist OutSystems in relation to any notifications to be carried out or prior approvals that may be required to be obtained from a supervisory authority, in connection with the Processing of Personal Data whenever requested by OutSystems, including, without limitation, the preparation of supporting documentation.

5.2      Data Protection Impact Assessment and Prior Consultation. Where requested to do so, the Services Provider shall disclose the information reasonably required by OutSystems to demonstrate compliance with the applicable Data Protection Laws without undue delay but no later than within 5 days after the request and shall assist OutSystems to carry out a privacy impact assessment of the Services and work with OutSystems to implement agreed mitigation actions to address privacy risks identified.

5.3      Data Subject Requests. Services Provider shallnotify OutSystems if it receives a request from a Data Subject to exercise any of the Data Subject's rights, such as the right of access, to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or the right not to be subject to an automated individual decision making (“Data Subject Request”) without undue delay but no later than within 5 days from such request.
Considering the nature of the Processing, Services Provider shall assist OutSystems by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of OutSystems’ obligation to respond to a Data Subject Request under Data Protection Laws.
In addition, if OutSystems does not have the ability to address a Data Subject Request, the Services Provider shall upon OutSystems’ request provide all the necessary assistance to OutSystems in responding to such Data Subject Request without undue delay but no later than within 5 days after OutSytems request.

5.4      Authority Requests. The Services Provider shall, and shall procure that the Sub-Processors shall without undue delay but no later than within 48 hours notify OutSystems, including by providing copies of the received documentation, if it receives any communication, correspondence or request for information (whether written or oral) from any regulatory or judicial authority relating directly or indirectly to the Personal Data, including in connection with any enforcement action or investigation carried out under the applicable Data Protection Laws.

5.5      Data Quality. The Services Provider shall and shall procure that the Sub-Processors shall preserve the accuracy and integrity of Personal Data. The Services Provider shall update, amend, correct or delete Personal Data that is inaccurate or incomplete at OutSystems’ request without undue delay but no later than within 5 days, in accordance with the provisions set forth in this Data Processing Agreement or under the applicable Data Protection Laws.

5.6      Deletion, Destruction or Return of Personal Data. Unless otherwise stipulated by the applicable Data Protection Laws, the Services Agreement or this Data Processing Agreement, notwithstanding any failure of OutSystems to provide written instructions, Services Provider shall and shall procure that the Sub-Processors shall delete or destroy all Personal Data stored, collected or Processed on behalf of OutSystems, upon termination of the Services Agreement.
Following expiry or termination of the Services Agreement, and at any other time upon OutSystems’ written request, the Services Provider shall and shall procure that all Sub-Processors shall immediately and permanently delete all electronic copies of the Personal Data from its/their computer systems (including without limitation servers, hardware and mobile devices) and from digital media in its/their possession or control; and in respect of hard copies of the Personal Data, securely destroy all originals and copies of Personal Data in its, or its Sub-Processors, possession, custody, or control. Upon OutSystems’ request, the Services Provider shall provide a certification confirming that all Personal Data Processed under the Services Agreement has been securely destroyed.

5.7      Costs. Services Provider shall not charge any additional costs in order to comply with its cooperation duties referred in this clause 5.

6. BREACH EVENT

6.1      Breach Notification. Services Provider shall notify OutSystems promptly and without undue delay but no later than within 24 hours after becoming aware of any actual or suspected Breach Event. Where and in so far as it is not possible to provide all the relevant information at the same time, the information may be provided in phases without undue delay.
Outsystems shall not be bound by the Service Provider understanding, views, opinions or qualification of the Breach Event nor will Outsystems will be bound to the Service Provider indication of risk levels, mitigation measures and legal actions.

6.2      Cooperation. Services Provider shall fully and promptly cooperate with OutSystems in satisfying its obligations with respect to a Breach Event, as determined by the applicable Data Protection Laws. The notification shall include:

(i)      a detailed description of the Breach Event, in particular, the categories and approximate number and identity of Data Subjects and Personal Data records concerned;
(ii)      any measure proposed to be taken to address the Breach Event and to mitigate its possible adverse effects; and
(iii)      all other information in its possession or control concerning the Breach Event.

Services Provider shall provide all assistance and cooperation as may be required for OutSystems to mitigate the effects of the Breach Event, comply with the Data Protection Laws and adhere to guidance issued by relevant supervisory authority with regard to Breach Event management and reporting.

6.3      Investigation. Services Provider shall immediately investigate the Breach Event to identify, prevent and make best efforts to mitigate the effects of the Breach Event and, subject to OutSystems prior agreement, to carry out any action necessary to remedy the Breach Event.

6.4      Communication. Services Provider shall not release or publish any sort of communication regarding the Breach Event without OutSystems’ prior written approval.

6.5      Costs. The actions referred to shall be undertaken at the expenses of the Services Provider, without prejudice to OutSystems seek any legal remedy as a result of the Breach Event. Furthermore, Services Provider shall reimburse OutSystems of all costs, losses and expenses related to the management of the Breach Event.

7. SUB-PROCESSORS

7.1      Scope. The present clause applies whenever the Services Provider engages a Sub-Processor for Processing Personal Data pursuant to this Agreement. Otherwise, the Services Provider hereby declares and warrants that no Sub-Processors will be engaged for Processing Personal Data pursuant to this Agreement.

7.2      Selection of Sub-Processors. Services Provider must choose Sub-Processors that provide sufficient guarantees in respect of the technical security measures and organizational measures governing the Processing. The Sub-Processors engaged must ensure compliance with the requirements and/or obligations foreseen in the Data Protection Laws and this Data Processing Agreement. Before the Sub-Processor first Processes Personal Data on behalf of OutSystems, Services Provider must carry out due diligence to ensure that the Sub-Processor is capable of providing the level of protection for Personal Data required by this Agreement and Data Protection Laws.

7.3      Engagement of Sub-Processors. With respect to each Sub-Processor, the Services Provider shall ensure that the arrangement between the Services Provider and any prospective Sub-Processor is governed by a written contract including terms which offer at least the same level of protection for the Personal Data as those set out in this Agreement, and that such terms meet the requirements of article 28(3), of the GDPR and that the Sub-Processors act in accordance with OutSystems’ instructions. Service Provider will, following OutSystem’s written request, provide to OutSystems the names of its Sub-processors processing the Personal Data of OutSystems. OutSystems will have the opportunity to object to any Sub-Processor identified. If the Services Provider has chosen an unsuitable Sub-Processor that causes OutSystems to terminate the Agreement, then OutSystems is entitled to be indemnified for any damages caused, as referred to in clause 11.

7.4      Control of Sub-Processors. The Services Provider shall conduct periodically audits to the Sub-Processors appointed that shall be documented and made available to OutSystems upon request.

7.5      Services Provider liability. Where the Sub-Processor fails to fulfil its data protection obligations, Services Provider will remain liable to OutSystems for the performance of such Sub-Processor’s obligations.

8. AUDIT RIGHTS

8.1      Information. Services Provider shall and shall procure that any Sub-Processor on request, makes available to OutSystems information necessary to demonstrate compliance with this Data Processing Agreement.

8.2      Audits. Services Provider shall and shall procure that any Sub-Processor allows OutSystems to perform any audits in relation to the Processing of Personal Data under the Services Agreement which might include access to its premises by OutSystems or an auditor mandated for this purpose.
OutSystems shall give the Services Provider reasonable notice of any audit or inspection to be conducted under this Section and ensure that each of its mandated auditors use its best efforts to avoid causing any damage, injury or disruption to the Services Provider premises, equipment, Personnel, data, and business while its Personnel and/or its auditor’s Personnel (if applicable) are on those premises in the course of any on-premise inspection.

9. RESTRICTED TRANSFERS

The Parties hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfers from OutSystems to the Services Provider.
The Standard Contractual Clauses shall come into effect on commencement of the relevant Restricted Transfers.
In the event of any conflict or inconsistency between this Agreement and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail when applicable.
The Services Provider agrees that no Personal Data Processed on behalf of OutSystems shall be Processed by any Sub-Processor outside the EU/EEA without OutSystems’ previous written consent and otherwise than in accordance with chapter V of the GDPR. The Services Provider shall ensure that one of the legal mechanisms to achieve adequacy in respect of that Processing is in place, as applicable: (i) Sub-Processors’ Swiss-US Privacy Shield Framework certifications (if any), or (ii) Standard Contractual Clauses.

10. RECORDS

The Services Provider shall keep records of its Processing activities performed on behalf of OutSystems.

11. LIABILITY

Services Provider will indemnify and keep indemnified OutSystems against all and any loss, liability, damage and expenses (including reasonable legal fees) incurred by it as a result of any breach by Services Provider of its obligations under this agreement. Nothing contained herein shall be considered as prohibiting or limiting OutSystems from pursuing any other remedies available to it.

12. NOTICES

Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice):(i) by email to legal@outsystems.com or to the email address of the Services Provider provided by the Services Provider by any means (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Notices hereunder will be sent to the contact and addresses set forth in the applicable Services Agreement and/or order form. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language.

13. SEVERABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.

14. GOVERNING LAW AND JURISDICTION

OutSystems entity with which Services Provider is contracting under this Agreement, to whom Customer should direct notices under this Agreement, the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule, and which courts can adjudicate any such lawsuit, shall be determined based on where Services Provider has its registered offices, as established for OutSystems End-Customer, as defined at www.outsystems.com/legal/governing-law-jurisdiction

The parties acknowledge and agree that this Agreement will apply to any future Services Agreements that may be concluded between the Parties. If and whenever necessary, the Exhibits attached herein may be amended in accordance with the types of data Processed or purposes for which the personal data is Processed.

EXHIBIT A
PROCESSING ACTIVITIES

Brief description of the Processing activities

Purpose of the Processing

Categories of Data Subjects

Type of Personal Data

The Services Provider will process Personal Data as necessary to perform the Services pursuant to the Services Agreement and applicable order(s), such as Processing activities related with:

  • Human resources management (namely payroll, recruitment, training, etc.);
  • Legal, accounting and tax management;
  • Marketing management activities (namely collection and transfer for personalized communications, organization of events, etc.);
  • Implementation or customization Services and/or advice related to the provision of any Services Provider proprietary Software;
  • Maintenance (e.g. testing and applying new product or system versions, patches, updates and upgrades, etc.) and support Services related to the provision of any Services Provider proprietary Software.

The purpose of the Processing is the provision of Services by the Services Provider pursuant to the Services Agreement and instructed by Controller in this Agreement.

May include, as applicable, Personal Data relating to the following categories of data subjects:

  • Customers, business partners and services providers of Controller (who are natural persons).
  • Employees or representatives of Controller’s customers, business partners and services providers (who are natural persons).
  • Employees, agents, advisors, contractors of Controller (who are natural persons).
  • Controller’s users authorized by Controller to use the Services (who are natural persons).

Controller may submit Personal Data to the Services Provider, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, as applicable, but is not limited to the following categories of Personal Data:

  • Identification data (name).
  • Contact details (such as postal address, phone number and e-mail).
  • Professional data (such as job title and name of the company).
  • Contract data (information regarding the OutSystems customer's order).
  • Usage data (such as data about the customer's device and how such device interact with OutSystems and OutSystems' services).
  • Location data (such as location derived from the IP address or data that indicates where that Controller or Controller customers’ is located with less precision, such as at a city or postal code level).
  • Content data (such as the content of the Controller and Controller’s customers files and communications).
  • Credentials (such as passwords, passwords hints and similar security information used for authentication).

EXHIBIT B
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

Article 1
The standard contractual clauses set out in the Annex are considered as offering adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights as required by Article 26(2) of Directive 95/46/EC.

Article 2
This Decision concerns only the adequacy of protection provided by the standard contractual clauses set out in the Annex for the transfer of personal data to processors. It does not affect the application of other national provisions implementing Directive 95/46/EC that pertain to the processing of personal data within the Member States.
This Decision shall apply to the transfer of personal data by controllers established in the European Union to recipients established outside the territory of the European Union who act only as processors.

Article 3
For the purposes of this Decision the following definitions shall apply:
(a)      special categories of data’ means the data referred to in Article 8 of Directive 95/46/EC;

(b)      supervisory authority’ means the authority referred to in Article 28 of Directive 95/46/EC;

(c)      data exporter’ means the controller who transfers the personal data;

(d)      data importer’ means the processor established in a third country who agrees to receive from the data exporter personal data intended for processing on the data exporter’s behalf after the transfer in accordance with his instructions and the terms of this Decision 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;

(e)      sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer and who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for the processing activities to be carried out on behalf of the data exporter after the transfer in accordance with the data exporter’s instructions, the standard contractual clauses set out in the Annex, and the terms of the written contract for sub-processing;

(f)      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;

(g)      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.

Article 4
1.       Without prejudice to their powers to take action to ensure compliance with national provisions adopted pursuant to Chapters II, III, V and VI of Directive 95/46/EC, the competent authorities in the Member States may exercise their existing powers to prohibit or suspend data flows to third countries in order to protect individuals with regard to the processing of their personal data in cases where:
(a)      it is established that the law to which the data importer or a sub-processor is subject imposes upon him requirements to derogate from the applicable data protection law which go beyond the restrictions necessary in a democratic society as provided for in Article 13 of Directive 95/46/EC where those requirements are likely to have a substantial adverse effect on the guarantees provided by the applicable data protection law and the standard contractual clauses;

(b)      a competent authority has established that the data importer or a sub-processor has not respected the standard contractual clauses in the Annex; or

(c)      there is a substantial likelihood that the standard contractual clauses in the Annex are not being or will not be complied with and the continuing transfer would create an imminent risk of grave harm to the data subjects.

2.       The prohibition or suspension pursuant to paragraph 1 shall be lifted as soon as the reasons for the suspension or prohibition no longer exist.

3.       When Member States adopt measures pursuant to paragraphs 1 and 2, they shall, without delay, inform the Commission which will forward the information to the other Member States.

Article 5
The Commission shall evaluate the operation of this Decision on the basis of available information three years after its adoption. It shall submit a report on the findings to the Committee established under Article 31 of Directive 95/46/EC. It shall include any evidence that could affect the evaluation concerning the adequacy of the standard contractual clauses in the Annex and any evidence that this Decision is being applied in a discriminatory way.

Article 6
This Decision shall apply from 15 May 2010.

Article 7
1.       Decision 2002/16/EC is repealed with effect from 15 May 2010.
2.       A contract concluded between a data exporter and a data importer pursuant to Decision 2002/16/EC before 15 May 2010 shall remain in force and effect for as long as the transfers and data-processing operations that are the subject matter of the contract remain unchanged and personal data covered by this Decision continue to be transferred between the parties. Where contracting parties decide to make changes in this regard or subcontract the processing operations that are the subject matter of the contract they shall be required to enter into a new contract which shall comply with the standard contractual clauses set out in the Annex.

Article 8
This Decision is addressed to the Member States.

ANNEX
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

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

OutSystems, as identified in the Services Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(the data exporter)

And

Services Provider, as identified in the Services Agreement in relation to which this Exhibit B forms part of and applicable order(s).

(the data importer)

each a ‘party’; together ‘the parties’,

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

Clause 1
Definitions

For the purposes of the Clauses:

(a)      personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);

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

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

(d)      the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e)      the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)      technical and 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.

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

1.       The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2.       The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.       The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4.       The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:

(a)      that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b)      that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c)      that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

(d)      that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;

(e)      that it will ensure compliance with the security measures;

(f)      that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g)      to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h)      to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i)       that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j)      that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer (2)

The data importer agrees and warrants:

(a)      to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b)      that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c)      that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

(d)      that it will promptly notify the data exporter about:
(i)   any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii)   any accidental or unauthorized access; and

(iii)   any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

(e)      to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f)      at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g)      to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h)      that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i)       that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j)      to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

1.       The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2.       If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
3.       If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

1.       The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a)       to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is established.

(b)       to refer the dispute to the courts in the Member State in which the data exporter is established.
2.       The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

1.       The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2.       The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3.       The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

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

Clause 10
Variation of the contract

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

Clause 11
Sub-processing

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

Clause 12
Obligation after the termination of personal data-processing services

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

(1) Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
(2) Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
(3) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

Appendix 1

to the Standard Contractual Clauses

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 (please specify briefly your activities relevant to the transfer):

OutSystems, which is an information technology company providing software products and services associated with its proprietary software, the OutSystems Platform.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

The Services Provider (which will process personal data as necessary to perform the Services pursuant to the Services Agreement and applicable order(s)).

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):
May include, as applicable, Personal Data relating to the following categories of Data Subjects:

  • Customers, business partners and services providers of Controller (who are natural persons).
  • Employees or representatives of Controller’s customers, business partners and services providers (who are natural persons).
  • Employees, agents, advisors, contractors of Controller (who are natural persons).
  • Controller’s users authorized by Controller to use the Services (who are natural persons).

Categories of data

The personal data transferred concern the following categories of data (please specify):
May include, as applicable, but is not limited to the following categories of Personal Data:

  • Identification data (name).
  • Contact details (such as postal address, phone number and e-mail).
  • Professional data (such as job title and name of the company).
  • Contract data (information regarding the OutSystems customer's order).
  • Usage data (such as data about the customer's device and how such device interact with OutSystems and OutSystems' services).
  • Location data (such as location derived from the IP address or data that indicates where that Controller or Controller customers’ is located with less precision, such as at a city or postal code level).
  • Content data (such as the content of the Controller and Controller’s customers files and communications).
  • Credentials (such as passwords, passwords hints and similar security information used for authentication).

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):
Non-applicable.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):
OutSystems will process Personal Data as necessary to perform the Services pursuant to the Master Agreement and applicable order(s). These Processing activities may include:

  • Consulting and training Services related to the provision of any OutSystems proprietary Software.
  • Implementation or customization Services and/or advice related to the provision of any OutSystems proprietary Software.
  • Maintenance (e.g. testing and applying new product or system versions, patches, updates and upgrades, etc.) and support Services related to the provision of any OutSystems proprietary Software.

Appendix 2

to the Standard Contractual Clauses

The data importer uses appropriate technical, organizational and administrative security measures to protect the personal data transmitted by the data exporter against accidental or unlawful loss, misuse, unauthorized access, disclosure, alteration and destruction. Data importer’s security measures are continually improved in line with technological developments.

The data importer has implemented access controls to ensure that the access and processing of the personal data is strictly limited to those individuals who need to know or access such personal data for the performance of their specific duties or tasks (need-to-know).

The data importer shall implement security measures that shall include, but are not limited to:

(i)      access controls to ensure that the access to and the Processing of Personal Data is strictly limited to those individuals who need to know or have access to such Personal Data for the performance of their specific duties or tasks (need-to-know) and strictly related to the provision of the Services;
(ii)      encryption and other security technologies to protect Personal Data from unauthorized access;
(iii)      information and data properly backed up on a daily basis and that arrangements for recovery processes are in place unless otherwise established in any other agreement entered into between the parties;
(iv)      proper measures to enable continuation of Services, as far as reasonably possible, in case of the occurrence of an unexpected disruption event.

Data importer shall regularly test and assess the effectiveness of the technical, organizational, and administrative measures in place for ensuring the security of the processing and ensure that such security measures are continually improved in line with technological developments.

Data importer shall ensure that its Personnel are fully aware of the risks associated with information and data security issues.