EZLease Data Processing Addendum

Effective: 24 September 2021

This Data Processing Addendum (“DPA”) supplements the EZLease Subscription Services Customer Agreement, available at EZLease Subscription Agreement, as updated from time to time between Customer and EZLease, or other agreement between Customer and EZLease governing Customer’s use of the Service Offerings (the “Agreement”) when the GDPR applies to your use of EZLease to process Customer Data. This DPA is an agreement between you and the entity you represent (“Customer”, “you” or “your”) and the applicable contracting entity under the Agreement (“EZLease”). Unless otherwise defined in this DPA or in the Agreement, all capitalised terms used in this DPA will have the meanings given to them in Section 17 of this DPA. 

1. Data Processing

1.1  Scope and Roles. This DPA applies when Customer Data is processed by EZLease. In this context, EZLease will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).

1.2  Details of Data Processing. The details of processing, including subject matter, purpose of processing, nature of processing, categories of data subjects and type of Customer Data are described in Appendix 1 to the Standard Contractual Clauses attached as Annex 2.

1.3  Compliance with EZLease. Each party will comply with all EZLease rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.

2. Customer Instructions

The parties agree that this DPA and the Agreement constitute Customer’s documented instructions regarding EZLease’ s processing of Customer Data (“Documented Instructions”). EZLease will process Customer Data only in accordance with Documented Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between EZLease and Customer, including agreement on any additional fees payable by Customer to EZLease for carrying out such instructions. Customer is entitled to terminate this DPA and the Agreement if EZLease declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.

3. Confidentiality of Customer Data

EZLease will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends EZLease a demand for Customer Data, EZLease, if permitted by law, will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, EZLease may provide Customer’s basic contact information to the governmental body. If compelled to disclose Customer Data to a governmental body, then EZLease will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless EZLease is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.

4. Confidentiality Obligations of EZLease Personnel

EZLease restricts its personnel from processing Customer Data without authorisation by EZLease as described in the EZLease Security Standards. EZLease imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.

5. Security of Data Processing

5.1  EZLease has implemented and will maintain the technical and organisational measures for the EZLease Network as described in the EZLease Security Standards and this Section. EZLease has implemented and will maintain the following technical and organisational measures:

(a) security of the EZLease Application as set out in Section 1.1 of the EZLease Security Standard, Annex 1;

(b) physical security of the facilities as set out in Section 1.2 of the EZLease Security Standard, Annex 1;

(c) measures to control access rights for EZLease employees and contractors in relation to EZLease or the EZLease application as set out in Section 2 of the EZLease Security Standards, Annex 1; and

(d) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by EZLease as set out in Section 2 of the EZLease Security Standards, Annex 1.

6. Sub-Processing

6.1  Authorised Sub-Processors. Customer acknowledges and agrees that EZLease may use sub-processors to fulfil its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. If EZLease engages a new sub-processor, EZLease will update the applicable website and provide Customer with a mechanism to obtain notice of that update. Within thirty (30) days after receipt of EZLease’ s notice, Customer may object to a new sub-processor, by notifying EZLease, promptly, in writing.  In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, EZLease will use reasonable efforts to make or recommend a commercially reasonable change to Customer’s use of the Services to avoid Processing of Customer Data by the objected-to new Subprocessor without unreasonably burdening Customer. If EZLease is unable to make available such change within a reasonable period of time, Customer may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by EZLease without the use of the objected-to new Sub-processor by providing written notice to EZLease. In such circumstance, EZLease will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.

The current listing of EZLease Sub-processors is as identified in Annex 3, attached hereto. 

6.2  Sub-Processor Obligations. Where EZLease authorises any sub-processor as described in Section 1:

(a) EZLease will restrict the sub-processor’s access to Customer Data only to what is necessary to maintain the Services or to provide the Services to Customer and any End Users in accordance with the Documentation and EZLease will prohibit the sub-processor from accessing Customer Data for any other purpose;

(b) EZLease will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by EZLease under this DPA, EZLease will impose on the sub- processor the same contractual obligations that EZLease has under this DPA; and

(c) EZLease will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause EZLease to breach any of EZLease’s obligations under this DPA.

7. Data Subject Rights

EZLease offers Customer certain (“self service”) controls to enable Customer to comply with its obligations towards data subjects, with respect to the Customer Data. Taking into account the nature of the Services, EZ Lease will upon request provide reasonable assistance to Customer to the extent necessary to enable Customer to respond to a data subject request pursuant to applicable Data Protection Law. Should a data subject contact EZLease regarding its personal data processed by EZLease as part of the Customer Data, EZLease will use commercially reasonable efforts to forward such requests to Customer.

8. Personal Data Breach

8.1  Personal Data Breach. EZLease will (a) notify Customer of a Personal Data Breach without undue delay after becoming aware of the Personal Data Breach, and b) and will provide information (as available) to assist Customer to meet any obligations to report a Personal Data Breach under GDPR. 

8.2  EZLease Assistance. EZLease will cooperate with Customer and take such reasonable steps as are agreed in good faith by the Parties to assist in the investigation, mitigation, and remediation of each Personal Data Breach. To the extent that a Personal Data Breach does not result from a breach by EZLease of its obligations under this DPA or the Agreement, Customer will reimburse EZLease in full for all costs reasonably and properly incurred by EZLease performing its obligations under this Section 8 (including internal costs and third-party costs including legal fees).

8.3  EZLease’ s Communication. Notification(s) of Personal Data Breaches, if any, will be delivered to one or more of Customer’s administrators by any means EZLease selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information with EZLease with EZLease and secure transmission at all times.

9. Audit Rights

9.1  Subject to Sections 9.2 through 9.4, EZLease will make available to the Customer on request all information reasonably necessary to demonstrate compliance with this DPA, and will allow for and contribute to audits, including inspections by an auditor mandated by the Customer, in relation to the Processing of Customer Personal Data by EZLease or subprocessors.

9.2  The Customer will give EZLease notice of any audit or inspection to be conducted under Section 9.1 and will (and ensure that each of its mandated auditors will) take all reasonable steps to avoid causing any damage, injury, or disruption to EZLease and any of the subprocessors’ premises, equipment, personnel, and business during the course of such an audit or inspection. Except as otherwise required by applicable law, any audit or inspection will be conducted within normal business hours no more than once in any calendar year.

9.3  The Customer will reimburse EZLease in full for all costs reasonably and properly incurred by EZLease performing its or their obligations under this Section 9 (including internal costs, third-party costs including legal fees, and costs incurred by EZLease with respect to audits of any subprocessors).

9.4  The Customer agrees and acknowledges that: (i) any information obtained under Section 9 will be kept confidential and not disclosed to any person except as expressly permitted in the Agreement; (ii) any person exercising any rights under Section 9 complies with any lawful policies of EZLease that are notified to the Customer; and (iii) the disruption caused to EZLease and its business, officers, and employees shall be kept to a minimum, and it is agreed and acknowledged that nothing in this DPA shall require EZLease or its subprocessors to disclose or provide access to any records, information, or databases which are confidential or proprietary to EZLease or any of its subprocessors.

10. Transfers of Personal Data

10.1  Regions  

10.1.1  Customer Data will be stored within the EZLease Network in the US (N. Virginia) Region and may be processed by EZLease and its Subprocessors in connection with the provision of the Services, in the United States and other jurisdictions (including but not limited to the United States, Canada, Australia, New Zealand, Switzerland, the United Kingdom, and India), subject to Section 10.1.2. EZLease will not otherwise transfer Customer Data, except as necessary to provide the Services initiated by Customer, or as necessary to comply with the law or binding order of a governmental If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses.

10.1.2  To the extent Customer Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by EZLease, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clause, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, EZLease will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, EZLease will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

10.1.3  Customer consents to the transfer and processing of Customer Data by EZLease in the performance of the Services to and in the United States, Canada, Australia and New Zealand and for support purposes Switzerland, the United Kingdom and India.

10.2  Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if EZLease has adopted an alternative recognised compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.

11. Termination of the DPA

This DPA shall continue in force until the termination of the Agreement (the “Termination Date”).

12. Return or Deletion of Customer Data

The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this Section. For 30 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or regulatory body or it could subject EZLease or its Affiliates to liability. No later than the end of this 30-day period, Customer will close all EZLease accounts. EZLease will delete Customer Data when requested by Customer by using the Service controls provided for this purpose by EZLease.

13. Duties to Inform

Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by EZLease, EZLease will inform Customer without undue delay. EZLease will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.

14. Entire Agreement; Conflict

Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control, except that the Service Terms will control over this DPA.

15. CCPA

To the extent the CCPA is applicable, in connection with EZLease’s provision of Services to Customer under the Agreement, if EZLease receives any Customer Personal Data, then except as specifically provided herein, EZLease will only Process Customer Personal Data for the purpose of EZLease providing the Services.  EZLease will not retain, use, or disclose Customer Personal Data: (i) for any purpose other than to perform the Services or (ii) outside of the direct business relationship between Customer and EZLease.  EZLease will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Customer Personal Data to any third party for monetary or other valuable consideration.  EZLease certifies that it understands the restrictions on its Processing of Customer Personal Information as set forth in this section and will comply with them.

16. Definitions

Unless otherwise defined in the Agreement, all terms used in this DPA will have the meanings given to them below:

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and all regulations promulgated thereunder.

“Data Protection Laws” means the GDPR and the CCPA.

“EZLease Network” means EZLease’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within EZLease’s control and are used to provide the Services.

“EZLease Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.

“Customer” means you or the entity you represent.

“Customer Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Services under Customer’s EZLease accounts.

“EEA” means the European Economic Area.

“GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.

“Personal Data Breach” means any unauthorized access to, acquisition of, or Processing of unencrypted Customer Data, the misuse of which poses a risk of harm to data subjects; not including good faith access by EZLease personnel that does not result in any further unauthorized access or processing. 

“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.

Annex 1 – Security Standards

Capitalised terms not otherwise defined in this document have the meanings assigned to them in the Agreement.

1. Information Security Program

EZLease will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorised access to the EZLease Network, and (c) minimise security risks, including through risk assessment and regular testing. EZLease will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:

1.1  Network Security.The EZLease Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. EZLease will maintain access controls and policies to manage what access is allowed to the EZLease Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. EZLease will maintain corrective action and incident response plans to respond to potential security threats.

1.2  Physical Security

1.2.1  Physical Access Controls.Physical components of the EZLease Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorised entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorised employees or contractors while visiting the Facilities.

1.2.2  Limited Employee and Contractor Access. EZLease provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of EZLease or its Affiliates.

1.2.3  Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing  the  EZLease also maintains electronic intrusion detection systems designed to detect unauthorised access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.

2. Continued Evaluation

EZLease will conduct periodic reviews of the security of its EZLease Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. EZLease will continually evaluate the security of its EZLease Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.

Annex 2 – Standard Contractual Clauses

Section I

Clause 1: Purpose and scope

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

b) The Parties:

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

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

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

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

d) 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

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

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

Clause 3: Third-party beneficiaries

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

i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

ii. Clause 8 – Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);

iii. Clause 9 – Clause 9(a), (c), (d) and (e);

iv. Clause 12 – Clause 12(a), (d) and (f);

v. Clause 13;

vi. Clause 15.1(c), (d) and (e);

vii. Clause 16(e);

viii. Clause 18 – Clause 18(a) and (b);

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

Clause 4: Interpretation

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

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

c) 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 : Docking clause

a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

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

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

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

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

a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, 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.

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

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

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

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[1] (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

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

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

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

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

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

8.9  Documentation and compliance

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

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

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

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

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

Clause 9: Use of sub-processors

The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 calendar days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

a) 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.[1] The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 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.

b) 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.

c) 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.

d) 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

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

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

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

Clause 11: Redress

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

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

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

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

ii. refer the dispute to the competent courts within the meaning of Clause 18.

d) 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.

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

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

Clause 12: Liability

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

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

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

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

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

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

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

Clause 13: Supervision

a) [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.

b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to 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

a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures 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.

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

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

ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards[1];

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

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

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

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

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

Clause 15: Obligations of the data importer in case of access by public authorities

15.1  Notification

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

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

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

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

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

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

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

15.2  Review of legality and data minimisation

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

b) The data importer agrees to document its legal assessment and any challenge to 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.

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

Section IV – FINAL PROVISIONS

Clause 16: Non-compliance with the Clauses and termination

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

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

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

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

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

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

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

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

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

Clause 17: Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _ the Grand Duchy of Luxembourg (specify Member State).]

Clause 18: Choice of forum and jurisdiction

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

b) The Parties agree that those shall be the courts of the district of Luxembourg City. (specify Member State).

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

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

APPENDIX 1

ANNEX I

Data exporter(s):

Name: The entity identified as “Customer” in the Order Form.

Address: The address for Customer specified in the Order Form or the Agreement.

Contact person’s name, position and contact details: The contact details associated with Customer’s account, or as otherwise specified in the Order Form or the Agreement.

Activities relevant to the data transferred under these Clauses: Data Importer provides:

Data Exporter employs and engages individuals and receives goods and services from companies that employ and engage individuals.

Signature and date: By using the LAS services to transfer Customer Data to Third Countries, the data exporter will be deemed to have signed this Annex I.

Role (controller / processor): Controller

Data importer(s):

• Name: “LAS” as identified in the Order Form.
• Address: The address for LAS specified in the Order Form or the Agreement.
• Contact person’s name, position and contact details: The contact details specified in the Order Form or the Agreement.
• Activities relevant to the data transferred under these Clauses:
• Data Importer (and its sub-processors) will process lease accounting and lease management data for the duration of the Agreement for the Data Exporter.
• Signature and date: By transferring Customer Data to Third Countries on Customer instructions, the data importer will be deemed to have signed this Annex I.
• Role (controller / processor): Processor

APPENDIX 2: DESCRIPTION OF TRANSFER

1.1  Categories of data subjects whose personal data is transferred

The Personal Data transferred concern the following categories of Data Subjects:

• Data Exporter‘s employees and its contractor’s employees having responsibilities related to lease origination, lease administration, lease accounting and/or for the leased asset from a fiduciary perspective (Asset Owner) and day-to-day user of the leased asset (Asset User); and
• The employees of Data Exporter and Data Exporter’s contract counterparts (e.g. lessors or leased asset vendors) having responsibilities related to lease origination (e.g. signatories and notice recipients).

1.2  Categories of personal data transferred

Data Importer shall only process such limited Personal Data as is necessary to reasonably provide the Services.  The Personal Data processed concern the following categories of data: Name, contact details (may be limited to email address) and pre-defined role (e.g. Asset Owner and Asset User) of Data Subjects described in Section 3(a) and name, title, contact address and signatures of Data Subjects described in Section 3(b).  This data may be anonymized or obfuscated by the Data Exporter.

No personal data transferred concern special categories of data of the data subjects.

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

Personal data is transferred in accordance with Customer’s instructions as described in Section 2 of the Addendum.

Nature of the processing

The Personal Data transferred will be subject solely for Data Importer and its Sub-Processors to perform its obligations and exercise its rights under the operative Agreement governing Processors services and may not be processed for any other purpose, absent written instructions from the Exporter.

Purpose(s) of the data transfer and further processing

To provide the Services

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Not applicable because the data exporter determines the duration of processing in accordance with the Order Form.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

The subject matter, nature, and duration of the processing are described in Annex III of the Standard Contractual Clauses.

COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.

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

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

The technical and organizational measures as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in the Addendum.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.

The technical and organizational measures that the data importer will impose on subprocessors are described in the Addendum.

ANNEX III – LIST OF SUB-PROCESSORS

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

ADDITIONAL CLAUSES

The Limitations of Liability section of the Customer Agreement (usually Section 7 of the Agreement) is an additional clause pursuant to Clause 2 of these Clauses.

SUPPLEMENTARY ADDENDUM TO EZLEASE GDPR PROCESSING ADDENDUM

The purpose of this supplementary addendum (this “Addendum) is to outline supplemental measures that EZLease, LLC (“EZ”) takes to protection Customer Data.  This addendum supplements, but does not modify, the EZ GDPR Data Processing Addendum (the “EZ GDPR DPA”) or other agreement between Customer and EZ governing the processing of Customer Data pursuant to the GDPR.  Unless otherwise defined in this Addendum all capitalized terms used in the Addendum will have the meanings given to them in the EZ GDPR DPA.

1. Requests for Customer Data

1.1  If EZ receives a valid and binding order (”Request”) from any governmental body (“Requesting Party”) for disclosure of Customer Data, EZ will use every reasonable effort to redirect the Requesting Party to request Customer Data directly from Customer.

1.2  If compelled to disclose Customer Data to a Requesting Party, EZ will:

(a) Promptly notify Customer of the Request to allow Customer to seek a protective order or other appropriate remedy if EZ is legally permitted to do so. If EZ is prohibited from notifying Customer about the Request, EZ will use all reasonable and lawful efforts to obtain a waiver of prohibition, to allow EZ to communicate as much information to Customer as soon as possible; and

(b) Challenge any overbroad or inappropriate request (included where such Request conflicts with the law of the European Union or applicable Member State Law).

1.3  If, after exhausting the steps described in Section 1.2, EZ remains compelled to disclose Customer Data to a Requesting Party, EZ will disclose only the minimum amount of Customer Data necessary to satisfy the Request.

2. Data Subject Rights. Nothing in this Addendum restricts Customer’s data subjects from exercising their rights under the GDPR.

3. Warranty. EZ agrees and warrants that it has no reason to believe that the legislation appliable to EZ or it’s subprocessors, including any country to which Customer Data is transferred either by itself or through a subprocessor, prevents it from fulfilling the instructions received from Customer and its obligations under this Addendum and the EZ GDPR DPA and that in the event of a change in this legislation which is likely to have substantial adverse effect on the warranties and obligations provided by the Addendum to the EZ GDPR DPA, EZ will promptly notify the change to Customer as soon as it is aware, in which case Customer is entitled to suspend the transfer of Customer Data and/or terminate the Agreement.

4. Entire Agreement; Conflict. Except as supplemented by this Addendum, the EZ GDPR DPA and the Agreement will remain in full force and effort.  This Addendum together with the EZ GDPR DPA and the Agreement: (a) is intended by the parties as a final, complete and exclusive expression of the terms of their agreement, and (b) supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof.  If there is a conflict between the EZ GDPR DPA and this Addendum, the terms of this Addendum will control.