Data Processing Agreement

DATA PROCESSING AGREEMENT BETWEEN: (1) the Customer as defined in the Terms of Services entered into between the Customer and the Processor defined below (hereinafter called the “Controller”); and  (2) NET AFFINITY LIMITED having its registered office at 2nd Floor, Block 4 Bracken Business Park, Bracken Road, Sandyford, Dublin 18 (hereinafter called the "the Processor"). WHEREAS: (A) This Data Processing Agreement sets out the additional terms, requirements and conditions on which the Processor will process personal data when providing services under the Terms of Service entered into between the Processor and the Controller (the Terms of Service).  (B) This Agreement is compliant with the requirements of Article 28 of the General Data Protection Regulation.   (C) The parties wish to record their commitments to data protection law under the Terms of Service and this Data Processing Agreement (hereinafter called the “DPA”).   IT IS AGREED AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION In this Agreement: “Controller” means the entity which determines the purposes and means of the processing of personal data. “Controller Affiliate” means any of the Customer’s affiliates that are: (i) subject to applicable Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom; (ii) permitted to use the services pursuant to the Terms of Service. "Customer Data" means personal data which is processed by the Processor pursuant to the Terms of Service. "Data Protection Laws" means all laws and regulations including laws and binding regulations of the European Union, the EEA and their member states, Switzerland and the United Kingdom application to the processing of personal data under the Agreement; “Data Subject” means the identified or identifiable person to whom personal data relates. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th 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). “Personal Data” means any information that relates to an identified or identifiable natural person, to the extent that such information is protected as personal data under applicable Data Protection Laws. “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, reassure or destruction. “Processor” for the purpose of this Agreement shall mean the Processor but in general means the entity which processes Personal Data on behalf of the Controller which under this DPA is the Customer. “Processor Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the Processor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. “Restricted Transfer" means: (i) a transfer of Personal Data from the Customer to the Processor; or (ii) an onward transfer of Personal Data from the Processor to a third party; in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established. “Standard Contractual Clauses” means the contractual clauses set out in Annex 2. “Sub-Processor” means any entity engaged by the Processor to sub-process Personal Data in connection with the Services which in the case of this DPA is the Processor. "Services" means the provision of booking engine technology, voucher ordering services, marketing services and website designs, as detailed in the Terms of Service.  2. DATA PROCESSING OF PERSONAL DATA 2.1 The Customer is the Data Controller for the data and the Processor is the Data Processor for the data.  The Data Processor agrees to process the data only in accordance with the Data Protection Laws and the GDPR.   2.2 The Customer shall in the use of the Services and the provision of the instructions to the Processor process personal data in accordance with the requirements of applicable Data Protection Law and the GDPR.  All parties shall agree that the Customer shall have sole responsibility for the accuracy and quality and legality of the Personal Data and the means by which the Customer acquired the data. 2.3. Providing the Services under the Terms of Service, the Processor as either Processor or Sub-Processor shall only process data for the following purposes: (a) Processing in accordance with the Terms of Service. (b) Processing in order to comply with reasonable instructions provided by the customer as the Controller. (c) Processing to comply with other reasonable instructions provided by the Customer that are consistent with the Services. 2.4. Annex 1 to this DPA sets out certain information regarding the Processor’s processing of the Customer Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). The Customer may make reasonable amendments to Annex 1 by written notice to from time to time as the Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 confers any right or imposes any obligation on any party to this DPA. 3. RIGHTS OF DATA SUBJECTS 3.1 The Processor shall to the extent legally permitted, promptly notify the Customer if the Processor receives any requests from a Data Subject to exercise the following Data Subjects rights relating to the Data; access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or to not to be subject to an automated individual decision making (each, a Data Subject Request). Taking into account the nature of the Processing, the Processor will work with the Customer by the provision of appropriate technical and organizational services insofar as possible for the fulfilment of any obligation on the part of the Customer to respond to a Data Subject Request under applicable Data Protection Laws.  In addition, to the extent that the Customer in its use of the Services under the Terms of Service does not have the ability to address a Data Subject Request, the Processor shall, upon the Customer’s instruction, provide commercially reasonable efforts to assist the Customer in responding to such Data Subject Request, to the extent that the Processor is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Laws. The Customer shall be responsible for any costs arising from the Processor’s provision of assistance. 4. SUB-PROCESSORS 4.1 Appointment of Sub-processors.   The Customer acknowledges and agrees that: (a) The Processor’s Affiliates may be retained as Sub-Processors; and   (b) The Processor respectively may engage third-party Sub-Processors in connection with the provision of the Services. As a condition to permitting Sub-Processor to Process Personal Data, the Processor will enter into a written agreement with each Sub-Processor containing appropriate data security obligations which comply with Data Protection Laws, to the extent applicable to the nature of the Services provided by such Sub-Processor. 4.2 Objection Right for New Sub-Processor The Customer may reasonable objection to the Processor’s use of a new Sub-Processor (e.g., if making Personal Data available to the Sub-Processor may violate applicable Data Protection Law or weaken the protections for such Personal Data) by notifying the Processor promptly in writing within ten (10) business days after receipt of notification from the Processor of the appointment of a new Sub-Processor.   Such notice shall explain the reasonable grounds for the objection.  In the event the Customer objects to a new Sub-Processor, and the Processor is unable to make available a change to the services or Sub-Processor to resolve the Customer’s object within a reasonable period of time, which shall not exceed thirty (30) days, either party may terminate without penalty the Terms of Service with respect only to those Services which cannot be provided by the Processor without the use of the objected to new Sub-Processor by providing written notice to the Processor. 5. SECURITY 5.1 Controls for the Protection of Customer Data The Processor shall maintain appropriate technical and organisational measures for protection of the security (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access, to the Customer Data), confidentiality and integrity of the Customer Data which comply with the relevant Data Protection Laws. 5.2 Third-Party Certifications and Audits The Customer may request an audit of the Processor’s procedures relevant to the protection of Personal Data, but only to the extent required under applicable Data Protection Law.  Such audit may occur once per calendar year, unless Data Protection Laws applicable to the Customer require more frequent audit.  If the Customer wishes to undertake an audit of the Processor’s processing of Personal Data, the Customer must give the Processor reasonable prior notice.  The Customer must submit a details audit to the Processor at least four (4) weeks in advance of the proposed audit or inspection date.  The audit plan must describe the proposed scope, duration, and start date of the audit.  The Processor will review the audit plan and inform the Customer of any concerns or questions (for example, any request for information that could compromise the Processor’s confidentiality obligations or the Processor’s security, privacy, employment or other relevant policies).  The Processor will work co-operatively with the Customer to agree a final audit plan and, once it is agreed, the Processor will permit and assist with such audit by the Customer (or an independent auditor mandated by the Customer). The Customer’s rights in this clause are subject to the Customer:  (a) Ensuring that all information obtained or generated by the Customer or auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (save for disclosure to the relevant Supervisory Authority or as otherwise required by applicable law) and is only used for the purposes of meeting the Customer’s audit requirements under the Data Protection Laws; (b) ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to the Processor’s business, the Processor’s Sub-Processors’ business (if applicable) and the business of the Processor’s other customers; and (c) paying the Processor’s costs for assisting with the provision of information and permitting and contributing to inspections and audits. 6. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION 6.1 The Processor maintains security incident management policies and procedures in accordance with relevant Data Protection Laws.  The Processor shall notify the Customer of any breach of the Processor’s systems relating to the Customer Data of which the Processor becomes aware and which may require a notification to be made to a Supervisory Authority or Data Subject under applicable Data Protection Law or which the Processor is required to notify the Customer under applicable Data Protection Law (a “Customer Data Incident”).  The Processor shall provide commercially reasonable cooperation and assistance in identifying the cause of such Customer Data Incident and take commercially reasonable steps to remediate the cause to the extent the remediation is with the Processor’s control.  The obligations herein shall not apply to incidents that are caused by the Customer or any of its employees, contractors, agents or representatives. 7. RETURN AND DELETION OF CUSTOMER DATA 7.1 Upon termination of the Services for which the Processor is Processing Personal Data, the Processor shall, upon the Customer’s request (subject to confirmation by the Customer Controller and such other limitations described in the Terms of Service), return all Customer Data and copies of such data to the Customer or securely destroy them and demonstrate to the satisfaction of the Customer that it has taken such measures, unless applicable law prevents it from returning or destroying all or part of Customer Data.  The Processor agrees to preserve the confidentiality of any retained Customer Data and will only actively Process such Customer Data after such date in order to comply with the laws it is subject to. 8. RESTRICTED TRANSFERS 8.1 Subject to section 8.3 the Customer (as "data exporter") and the Processor (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from the Customer to the Processor. 8.2 The Standard Contractual Clauses shall come into effect on the later of:  (a) the data exporter becoming a party to them;  (b) the data importer becoming a party to them; and  (c) commencement of the relevant Restricted Transfer. 8.3 Section 8.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law. 9. GOVERNING LAW 9.1 This DPA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland. 10. SEVERANCE 10.1 Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either: (a) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible; (b) construed in a manner as if the invalid or unenforceable part had never been contained therein. ANNEX 1 DETAILS OF PROCESSING OF COMPANY PERSONAL DATA This Annex 1 includes certain details of the Processing of Personal Data as required by Article 28(3) GDPR. Subject matter and duration of the Processing of Personal Data Subject matter: The subject matter of the Terms of Service regarding the processing of data is the execution of the following services or tasks by the Processor as data processor: website builder services, voucher order services and/or booking engine services. Duration: this DPA is valid during the terms of the Terms of Service.  The nature and purpose of the Processing of Personal Data To provide website builder services, voucher order services and/or booking engine services. The undertaking of the contractually agreed processing of personal data shall be carried out in accordance with the Terms of Service and this DPA.  The types of Personal Data to be Processed First name, surname, email address, phone number, address, CC details, IP address. The categories of Data Subject to whom the Personal Data relates Guests, end-users, Customer employees, site users (with consent). The obligations and rights of the Customer and Customer Affiliates The obligations and rights of the Controller/Customer and Controller Affiliates are set out in the Terms of Service and this DPA. ANNEX 2 STANDARD CONTRACTUAL CLAUSES [These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the Data Protection Laws of the European Union or a Member State); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another Data Protection Law (otherwise).] [If these Clauses are not governed by the law of a Member State, the terms "Member State" and "State" are replaced, throughout, by the word "jurisdiction".] 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 [This opening recital is deleted if these Clauses are not governed by the law of a member state of the EEA.] (the data exporter) And  (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. Background The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.  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; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of "personal data" is expanded to include those data” are added.] (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; [If these Clauses are not governed by the law of a Member State, the words "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" are deleted.] (d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract; (e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; (f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Clause 2 Details of the transfer The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses. Clause 3 Third-party beneficiary clause 1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.  Clause 4 Obligations of the data exporter The data exporter agrees and warrants:  (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; (b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses; (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; (e) that it will ensure compliance with the security measures; (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words "within the meaning of Directive 95/46/EC" are deleted.] (g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension; (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information; (i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and (j) that it will ensure compliance with Clause 4(a) to (i). Clause 5 Obligations of the data importer The data importer agrees and warrants: (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred; (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, (ii) any accidental or unauthorised access, and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; (f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in 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 subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent; (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11; (j) to send promptly a copy of any subprocessor 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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered. 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract 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. 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 subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses. Clause 7 Mediation and jurisdiction 1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established. 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 subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b). Clause 9 Governing Law The Clauses shall be governed by the law of the Member State in which the data importer 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 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 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.  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses. 3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established. 4. The data exporter shall keep a list of subprocessing 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 subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.