NYSHEX Data Processing Agreement

If you need an executed version of this document, please contact NYSHEX at Legal@nyshex.com

Data Processing Agreement

This Data Processing Agreement (“DPA”) forms part of the Agreement between You and NYSHEX, LLC (“Processor”) pursuant to which Processor will provide the Services (as defined in the Agreement) to You (“Controller”). Processor agrees to comply with the following provisions with respect to any personal data processed on behalf of Controller in connection with the provision of the Services.

References to the Agreement will be construed as including this DPA. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an appendix to the Agreement. To the extent there is a conflict between this DPA and the Agreement, the terms of this DPA shall prevail with respect to compliance with applicable Data Protection Laws.

Section 1. Definitions

In this DPA, the following terms shall have the meanings set out below:

“Affiliates” means any entity which is controlled by controls or is in common control with Processor.

“Agreement” means the applicable Carrier Use Agreement or Membership Service Level Agreement.

“Applicable Laws” mean all applicable laws, regulations, regulatory requirements and codes of practice as amended and in force from time to time, including applicable Data Protection Laws.

“Data Controller” or “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Data Processor” or “Processor” means the entity which Processes Personal Data on behalf of the Data Controller.

“Data Protection Laws” means laws and regulations applicable to the Processing of Personal Data under the Agreement, including, but not limited to, the EU General Data Protection Regulation 2016/679 (“GDPR”), the Swiss Federal Data Protection Act (“Swiss DPA”), the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.10 et seq.) and its regulations (“CCPA”) and PRC Personal Information Protection Law (“PIPL”).

“Data Subject” means the individual to whom Personal Data relates.

“Member” means the Member that has executed the Agreement.

“Member Personal Data” means Personal Data provided by Controller to Processor related to the NYSHEX Systems service.

“Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household. For avoidance of doubt, Personal Data does not include transaction data, such as information about shipments.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction (“Process”, “Processes” and “Processed” shall have the same meaning).

“Security Breach” has the meaning set forth in Section 7 of this DPA.

“Sub-processor” means any Data Processor engaged by Processor.

Section 2. Processing of Personal Data

2.1 The parties agree that with regard to the Processing of Member Personal Data, Member is the Data Controller and NYSHEX, LLC is the Data Processor.

2.2 Controller shall, in its use or receipt of the Services, process Member Personal Data in accordance with the requirements of the Data Protection Laws and Controller will ensure that its instructions for the Processing of Member Personal Data comply with the Data Protection Laws. Controller shall have sole responsibility for the accuracy, quality, and legality of Member Personal Data and the means by which Controller obtained the Member Personal Data.

2.3 During the Term of the Agreement, Processor shall only Process Member Personal Data on behalf of and in accordance with the Agreement and Controller’s written instructions that are in compliance with the Data Protection Laws. Controller instructs Processor to Process Member Personal Data for the following purposes: (i) Processing in accordance with the Agreement and any applicable orders; (ii) Processing to comply with other reasonable written instructions provided by Controller where such instructions are consistent with the terms of the Agreement; and (iii) maintaining compliance with necessary rules and regulations.

2.4 Processor shall comply will Data Protection Laws. Processor shall promptly notify Controller if Processor reasonably determines that it can no longer meet its obligations under Data Protection Laws.

2.5 The objective of Processing of Member Personal Data by Processor is the performance of the Services pursuant to the Agreement. The details of the Processing, and in particular the purposes of Processing, the duration of Processing, the means of Processing, the types of Member Personal Data, are specified in Annex I.B to the Standard Contractual Clauses which are applicable to all Processing of Member Personal Data.

Section 3. Rights of Data Subjects

3.1 To the extent Controller, in its use or receipt of the Services, does not have the ability to correct, amend, restrict, block or delete Member Personal Data, as required by Data Protection Laws, Processor shall, taking into account the nature of the processing and information available to the processor, to comply with reasonable requests by Controller to facilitate such actions to the extent Processor is legally permitted to do so.

3.2 Processor shall, to the extent legally permitted, promptly notify Controller if it receives a request from a Data Subject for access to, correction, amendment, deletion of or objection to the processing of that person’s Personal Data. Processor shall not respond to any such Data Subject request without Controller’s prior written consent except to confirm that the request relates to Controller. Processor shall, taking into account the nature of the processing and information available to the processor, provide Controller with assistance in relation to the handling of a Data Subject’s request, to the extent legally permitted and to the extent Controller does not have access to such Member Personal Data through its use or receipt of the Services.

Section 4. Processor Personnel

4.1 Processor shall ensure that its personnel engaged in the Processing of Member Personal Data are informed of the confidential nature of the Member Personal Data and are subject to obligations of confidentiality.

4.2 Processor shall ensure that access to Member Personal Data is limited to those personnel who require such access to perform the Services.

4.3 Processor will appoint a data protection officer where such appointment is required by Data Protection Laws.

Section 5. Sub-Processors

5.1 Controller acknowledges and agrees that (i) Processor Affiliates may be retained as Sub-processors; and (ii) Processor may engage third-party Sub-processors in connection with the provision of the Services. Any such Sub-processors will be permitted to obtain Member Personal Data only to deliver the services Processor has retained them to provide and are prohibited from using Member Personal Data for any other purpose. Processor agrees that any agreement with a Sub-processor will include substantially the same data protection obligations as set out in this DPA.

5.2 Processor may continue to use those Sub-processors already engaged by Processor or any Processor affiliate as at the date of this DPA.

5.3 Processor shall give Controller prior written notice of the appointment of any new Sub-processor, including full details of the Processing to be undertaken by the Sub-processor. If, within fifteen (15) calendar days of receipt of that notice, Controller notifies Processor in writing of any objections (on reasonable grounds) to the proposed appointment, Processor shall not appoint that proposed Sub-processor until reasonable steps have been taken to address the objections raised by the Controller and the Controller has been provided with a reasonable written explanation of the steps taken.

Section 6. Security; Audit Rights; Privacy Impact Assessments

6.1 Processor shall maintain appropriate administrative, physical and technical safeguards reasonably designed to protect Member Personal Data from unauthorized access, acquisition, loss, or modification. The technical and organisation measures implemented by Processor to ensure an appropriate level of security are specified in Annex II to the Standard Contractual Clauses which is applicable to all Processing of Member Personal Data.

6.2 Upon written request, Processor shall make available to Controller the results of its most recent SOC2 assessment. No more than once per year, or upon reasonable suspicion that a Security Breach has occurred, Controller may engage a mutually agreed upon third party to audit Processor solely for the purposes of meeting its audit requirements pursuant to the Data Protection Laws. Audit requests must be sent to compliance@nyshex.com. The audit must be conducted during regular business hours, subject to Processor’s policies, and may not unreasonably interfere with Processor’s business activities. Any audits are at the Controller's expense.

6.3 Any request for Processor to provide assistance with an audit is considered a separate service if such audit assistance requires the use of resources different from or in addition to those required by Applicable Laws. For the avoidance of doubt, such audits include the the audit carried out by Controller or a third-party auditor acting under Controller’s direction as well as any audit requested by relevant authorities performing Personal Data protection duties. Controller shall reimburse Processor for any time spent for any such audit at the rates agreed to by the parties. Before the commencement of any such audit, Controller and Processor shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Controller shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Processor. Controller shall promptly notify Processor with information regarding any non-compliance discovered during the course of an audit.

6.4 Upon reasonable request, Processor shall make available to Controller all information necessary to demonstrate Processor’s compliance with Data Protection Laws and this DPA. Upon reasonable request, Processor will reasonably cooperate with Controller, at Controller’s expense, where Controller is conducting a privacy/data protection impact assessment or a security assessment as required by Data Protection Laws.

Section 7. Security Breach Management and Notification

7.1 If Processor becomes aware of any unauthorized access to any Member Personal Data stored on Processor’s equipment or in Processor’s facilities, or unauthorized access to such equipment or facilities resulting in material loss, disclosure, or alteration of Member Personal Data (“Security Breach”), Processor shall, within seventy-two (72) hours or other response time for the Security Breach as required by Data Protection Laws, (i) notify Controller of the Security Breach; (ii) investigate the Security Breach and provide Controller with information about the Security Breach; and (iii) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Breach.

7.2 Controller agrees that an unsuccessful Security Breach attempt will not be subject to this Section. An unsuccessful Security Breach attempt is one that results in no unauthorized access to Member Personal Data or to any of Processor’s equipment or facilities storing Member Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, or similar incidents.

7.3 Notification(s) of Security Breaches, if any, will be delivered to one or more of Controller’s business, technical or administrative contacts by any means Processor selects, including via email. It is Controller’s sole responsibility to ensure it maintains accurate contact information on Processor’s support systems at all times.

7.4 Controller acknowledges and agrees that, Controller shall have sole responsibility for notifying relevant authorities and the affected Data Subjects in the event of Security Breaches pursuant to the Data Protection Laws.

Section 8. Return and Deletion of Member Personal Data

Processor shall return Member Personal Data to Controller, to the extent possible, and/or delete Member Personal Data in accordance with Processor’s data retention policies which adhere to requirements of Data Protection Laws, unless Processor is required by Applicable Laws to retain such Member Personal Data.

Section 9. Standard Contractual Clauses

9.1 Controller (as "data exporter") and Processor (as "data importer") hereby enter into the Standard Contractual Clauses, attached hereto as Appendix 1, in respect of any transfer of Member Personal Data from (i) the European Union or (ii) Switzerland to the United States (“Restricted Transfer”). In the event of a conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall control solely with respect to Restricted Transfers of Member Personal Data thereunder.

9.2 For Restricted Transfers of Client Personal Data that are subject to the Swiss DPA, the SCCs shall apply as completed in accordance with paragraph 9.1 above, with the following modifications: (1) references to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA and references to specific Articles of “Regulation (EU) 2016/679” shall be replaced with the equivalent article or section of the Swiss DPA; (2) references to “EU”, “Union”, “Member State” and “Member State law” shall be replaced with references to “Switzerland”, or “Swiss law”; (3) the term “Member State” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland); and (4) references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland.

9.3 If applicable to the Services, in respect of any transfer of Member Personal Data from China to the United States, and if China adopts Chinese Standard Contract Clauses (“Chinese SCCs”) in accordance with Article 38 of the PIPL or other Data Protection Laws and Controller notifies Processor that it wishes to incorporate such Chinese SCCs into this DPA, the parties shall in good faith agree to the Chinese SCCs as reasonably required by Controller in order to achieve this.

9.4 Controller acknowledges and agrees that, Controller shall have sole responsibility in respect of any transfer of Member Personal Data to a country outside of China. If applicable to the Services, Controller shall provide written instructions to Processor in respect of any transfer of Member Personal Data to a country outside of China by Processor or Sub-processors in accordance with Data Protection Laws, in particular Chapter III of the PIPL.

Section 10. Parties to this DPA

Nothing in this DPA shall confer any benefits or rights on any person or entity other than the parties to this DPA.

Section 11. Legal Effect

This DPA shall only become legally binding between Controller and Processor when signed by both parties. If this document has been electronically signed by either party such signature will have the same legal affect as a handwritten signature.

APPENDIX 1: STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

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

The Parties:

the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

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

The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

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

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

Clause 3

Third-party beneficiaries

Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8 – Module One: Clause 8.5(€) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) a€(e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (€), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
3. Clause 9 - Module Two: Clause 9(a), (c), (€) and (e); Module Three: Clause 9(a), (€), (d) and –e);
4. Clause 12 - Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (€);
7. Clause–16(e);
8. Clause 18 - Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

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

Clause 4

Interpretation

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

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

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

Clause 5

Hierarchy

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

Clause 6

Description of the transfer(s)

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

Clause 7 [omitted]

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

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

8.1 Instructions

The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

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

8.4 Accuracy

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

8.5 Duration of processing and erasure or return of data

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

8.6. Security of processing

The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

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

8.8 Onward transfers

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

the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

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

8.9 Documentation and compliance

The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

OPTION 1: SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.

OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
refer the dispute to the competent courts within the meaning of Clause 18.
The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

[Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

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

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

Clause 14

Local laws and practices affecting compliance with the Clauses

The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

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

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

The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three: , if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

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

15.1 Notification

The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

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

If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

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

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

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

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

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

Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

OPTION 1: These Clauses shall be governed by the law of Switzerland or one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

[OPTION 2: These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of _______ (specify Member State).]

Clause 18

Choice of forum and jurisdiction

Any dispute arising from these Clauses shall be resolved by the courts of Switzerland or an EU Member State that allows and grants rights as a third-party beneficiary.
The Parties agree that those shall be the courts of (specify Member State).
A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
The Parties agree to submit themselves to the jurisdiction of such courts.

Annex I to the Standard Contractual Clauses

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

List of Parties

Data exporter

The data exporter is:

Member as detailed in the Agreement

Description of Activities Relevant to the Transfer: Receiving user logins and passwords; entering into transactions with Shippers.

Data importer

The data importer is:

Name: New York Shipping Exchange

Address: 30 Broad St, 14th Floor, New York, NY 10004

Role: Processor

Description of Activities Relevant to the Transfer: Providing user logins and passwords, providing customer support, monitoring, and enforcing contracts.

Description of Transfer

Data subjects

The personal data transferred concern the following categories of data subjects: member contact information

Categories of data

The personal data transferred concern the following categories of data: name, title, email address, business address, business phone number

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data:

Frequency of the transfer:

Personal data is only transferred at the beginning of the relationship and each time there is a new authorized user.

Nature of the processing:

The personal data transferred will be subject to the following basic processing activities: Review by the NYSHEX team and stored in our secure data basis. NYSHEX will include member contact information in compliance screenings such as relevant export sanction screenings.

Purpose of the data transfer and further processing: To monitor contracts and reissue passwords and account troubleshoot as necessary.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: NYSHEX is required to maintain these records for a minimum of five (5) years.

Competent Supervisory Authority

Option 1: The data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.

Option 2: The data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority.

Option 3: The data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located shall act as competent supervisory authority.

Option 4: The supervisory authority shall be the Swiss Federal Data Protection and Information Commissioner.

Annex II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

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

NYSHEX maintains significant security measures to protect member contact information. NYSHEX’s maintains multifactor authentication for access to anything stored on NYSHEX’s servers, including email and file storage locations. NYSHEX has completed all necessary steps for SOC certification and recertifies annually. Additionally, all NYSHEX employees receive security awareness training on the appropriate methods of handling sensitive information.

Information Security. NYSHEX will implement and maintain appropriate technical and organizational security measures to protect the security, confidentiality, and integrity of Member Personal Data.

Security Controls. NYSHEX will implement and maintain appropriate technical, physical, and administrative security controls for the protection of Member Personal Data, which will include the following:

Identity and Access Management.

3.1. Personnel. NYSHEX will limit access to Member Personal Data to personnel who require such access to perform the Services. NYSHEX will ensure that all personnel engaged in the Processing of Member Personal Data are informed of the confidential nature of the Member Personal Data and are subject to obligations of confidentiality.

3.2. Sub-Processors. Any Sub-processors engaged by NYSHEX in connection with the provision of the Services will be permitted to access Member Personal Data only to deliver the Services.

Security Incidents. If NYSHEX determines that it has experienced a Security Breach, NYSHEX will promptly: (i) notify Controller of the Security Breach; (ii) investigate the Security Breach and provide Controller with information about the Security Breach; and (iii) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Breach.

Return or Destruction of Member Personal Data. At Member’s written request, NYSHEX will promptly return to Member, in any reasonable format requested by Member, or will securely destroy all or any part of the Member Personal Data within a reasonable time period. NYSHEX will use reasonable measures to ensure that any Member Personal Data destroyed by NYSHEX is rendered unusable, unreadable, or indecipherable, or is otherwise de-identified.

ANNEX III – LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

Name: Amazon Web Services , Inc.

Contact person’s name, position and contact details: No designated contact person

Address: 410 Terry Avenue North, Seattle, WA 98109-5210

Location of Service: 30 Broad St, 14^th Fl, New York, NY 10004

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): The service that hosts the platform. The user data is stored in the platform so that they can enter contracts on behalf of their respective companies. NYSHEX uses provided services for Pub/sub models for sending messages between services, as well as for queuing of background processes, as well as processing API and EDI.

Transfer Mechanism: Standard Contractual Clauses

Name: Hubspot, Inc.

Contact person’s name, position and contact details: Kasey DiPaolo, customer support, kdipaolo@hubspot.com

Address: 25 First Street, 2nd Floor Cambridge, MA 02141 United States

Location of Service: 30 Broad St, 14th Fl, New York, NY 10004

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): CRM services. NYSHEX uses Hubspot as a central repository for Member and potential Member information. Using Hubspot, NYSHEX can contact Members on individually or as a group.

Transfer Mechanism: Standard Contractual Clauses

IN WITNESS WHEREOF, the Parties to this Contract have, by their duly authorized representatives, executed this Contract as of the date shown below.

On behalf of: On behalf of:

[Name] NYSHEX LLC

[Address 1] 30 Broad Street 14th Floor,

[Address 1] New York, NY 10004, USA

[Phone] +1 646-480-1663

By: By:

Name: Name:

Title: Title:

Name: Amazon Web Services , Inc.

Contact person’s name, position and contact details: No designated contact person

Address: 410 Terry Avenue North, Seattle, WA 98109-5210

Location of Service: 30 Broad St, 14^th Fl, New York, NY 10004

Transfer Mechanism: Standard Contractual Clauses

Name: Hubspot, Inc.

Contact person’s name, position and contact details: Kasey DiPaolo, customer support, kdipaolo@hubspot.com

Address: 25 First Street, 2nd Floor Cambridge, MA 02141 United States

Location of Service: 30 Broad St, 14th Fl, New York, NY 10004

Transfer Mechanism: Standard Contractual Clauses

IN WITNESS WHEREOF, the Parties to this Contract have, by their duly authorized representatives, executed this Contract as of the date shown below.

On behalf of: On behalf of:

[Name] NYSHEX LLC

[Address 1] 30 Broad Street 14th Floor,

[Address 2]. New York, NY 10004, USA

[Phone] +1 646-480-1663

By: By:

Name: Name:

Title: Title: