GDPR Terms

GDPR Terms: Mandatory Data Protection Agreement for Fitt’s Vendors/Suppliers
Fitt Ventures, a limited liability company organized under the laws of Pennsylvania, with offices at 181 42nd Street Pittsburgh, PA 15201 (“Fitt”) and the Vendor Company to
whom this Data Protection Annex has been sent, or to which this Data Protection Annex otherwise applies,(the “Processor”) have one or more written agreements (collectively, “the Agreements”) pursuant to which the Processor provides services to Fitt (collectively, the “Services”) that may entail the Processing of Personal Data (as defined below).

The European General Data Protection Regulation (GDPR) imposes specific obligations on Fitt
and other companies (controllers) with regard to their vendor relationships. The GDPR requires
companies to conduct appropriate due diligence on processors and to have contracts containing
specific provisions relating to data protection.

Each of the Agreements contains provisions requiring each party to comply with all applicable
laws. This Data Protection Annex (“Annex Z”) documents the data protection requirements
imposed upon the parties by the GDPR. This Annex Z is hereby incorporated by reference into
each Agreement in order to demonstrate the parties’ compliance with the GDPR.

1. For purposes of this Annex, “GDPR” means Regulation (EU) 2016/679, the General Data
Protection Regulation, together with any addition implementing legislation, rules or regulations
that are issued by applicable supervisory authorities. Words and phrases in this Annex shall, to
the greatest extent possible, have the meanings given to them in Article 4 of the GDPR. In
particular:

(a) “Personal Data“ has the meaning to give it in Article 4(1) of the GDPR: “any information
relating to an identified or identifiable natural person; an identifiable natural person is
one who can be identified, directly or indirectly, in particular by reference to an identifier
such as a name, an identification number, location data, an online identifier or to one or
more factors specific to the physical, physiological, genetic, mental, economic, cultural
or social identity of that natural person,” but only to the extent such personal data pertain
residents of the European Economic Area (EEA) or are otherwise subject to the GDPR.

(b) “Personal Data Breach” has the meaning given to it in Article 4(12) of the GDPR: “[any]
breach of security leading to the accidental or unlawful destruction, loss, alteration,
unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise
processed.”

(c) “Processing” has the meaning given to it in Article 4(2) of the GDPR: “any operation or
set of operations which is performed on personal data or on sets of personal data,
whether or not by automated means, such as collection, recording, organisation,
structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or combination,
restriction, erasure or destruction;”
(d) “Subprocessor” means any processor as defined in Article 4(8) of the GDPR: “[any]
natural or legal person, public authority, agency or other body which processes personal
data” on behalf of the Processor (including any affiliate of the Processor).

(e) “Transfer” means to disclose or otherwise make Personal Data available to a third party
(including to any affiliate or Subprocessor), either by physical movement of the Personal
Data to such third party or by enabling access to the Personal Data by other means.

2. In accordance with GDPR Article 28(1), Processor represents that it has implemented
appropriate technical and organisational measures in such a manner that its Processing of
Personal Data will meet the requirements of the GDPR and ensure the protection of the rights
of the data subjects.

3. In accordance with GDPR Article 28(2), the Processor shall not engage any
Subprocessor without prior specific or general written authorisation of Fitt. In the case of general written authorisation, the Processor shall inform Fitt of any intended changes concerning the addition or replacement of other Subprocessors and give Fitt the opportunity to object to such changes. The Processor shall also comply with the requirements for subprocessing as set forth in Article 28(4), namely that the data protection obligations set forth herein (and as may otherwise be agreed by the Processor in the Agreements) such be imposed upon the Subprocessor, so that the Processor’s contract with the Subprocessor contains sufficient guarantees that the Processing will meet the requirements of the GDPR.

4. In accordance with GDPR Article 28(3), the following terms are incorporated by
reference into the Agreements:

(a) The Processor shall only process the Personal Data only (i) as needed to provide the
Services, (ii) in accordance with the specific instructions that it has received from Fitt, including
with regard to any Transfers, and (iii) as needed to comply with law (in which case, the
Processor shall provide prior notice to Fitt of such legal requirement, unless that law prohibits
this disclosure);

(b) Processor 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) Processor shall take all security measures required by GDPR Article 32, namely:
i. Taking into account the state of the art, the costs of implementation and the nature,
scope, context and purposes of processing as well as the risk of varying likelihood and
severity for the rights and freedoms of natural persons, the Processor shall implement
appropriate technical and organisational measures to ensure a level of security
appropriate to the risk, including inter alia as appropriate: (a) the pseudonymisation
and encryption of Personal Data; (b) the ability to ensure the ongoing confidentiality,
integrity, availability and resilience of processing systems and services; (c) the ability
to restore the availability and access to Personal Data in a timely manner in the event
of a physical or technical incident; (d) a process for regularly testing, assessing and
evaluating the effectiveness of technical and organisational measures for ensuring the
security of the processing.
ii. In assessing the appropriate level of security account shall be taken in particular of the
risks that are presented by processing, in particular from accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data
transmitted, stored or otherwise processed.
iii. The Processor shall take steps to ensure that any natural person acting under the
authority of the Processor who has access to Personal Data does not process them
except on instructions from Fitt, unless he or she is required to do so by EEA Member
State law.

(d) Taking into account the nature of the processing, Processor shall reasonably assist Fitt
by appropriate technical and organisational measures, insofar as this is possible, for the
fulfilment of Fitt’s obligation to respond to requests for exercising the data subject’s rights;

(e) Taking into account the nature of processing and the information available to the
Processor, Processor shall comply with (and shall reasonably assist Fitt to comply with) the
obligations regarding Personal Data Breaches (as set forth in GDPR Articles 33 and 34), data
protection impact assessments (as set forth in GDPR Article 35), and prior consultation (as set
forth in GDPR Article 36);

(f) At Fitt’s discretion, the Processor shall delete or return all the Personal Data to Fitt after
the end of the provision of services relating to Processing, and delete existing copies unless
applicable EEA member state law requires storage of the Personal Data;

(g) The Processor shall provide Fitt with all information necessary to demonstrate
compliance with the obligations laid down in the GDPR, and allow for and contribute to audits,
including inspections, conducted by Fitt or another auditor mandated by Fitt; and

(h) The Processor shall immediately inform Fitt if, in its opinion, an instruction infringes
the GDPR or other Union or Member State data protection provisions.
5. The Processor shall not Transfer any Personal Data (and shall not permit its
Subprocessors to Transfer any Personal Data) without the prior consent of Fitt. The Processor
understands that Fitt must approve and document that adequate protection for the Personal
Data will exist after the Transfer, using contracts that provide sufficient guarantees (such as
standard contractual clauses) unless another legal basis for the Transfer exists (e.g., the EUU.S.and Swiss-U.S. Privacy Shield Frameworks).

6. The Processor will promptly and thoroughly investigate all allegations of unauthorized
access to, use or disclosure of the Personal Data. Processor will notify Fitt without undue
delay in the event of any Personal Data Breach.

7. The Processor shall maintain all records required by Article 30(2) of the GDPR, and (to
the extent they are applicable to Processor’s activities for Fitt) Processor shall make them
available to Fitt upon request.
Commission Decision C(2010)593

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

Name of the data exporting organisation:………………………………………………………………………….
Address:………………………………………………………………………………………………………………….
Tel.: ……………………………………….. ; fax: ………………………….. ; e-mail: …………………………….
Other information needed to identify the organisation:
……………………………………………………………
(the data exporter)
And
Name of the data importing organisation: …………………………………………………………………….
Address:………………………………………………………………………………………………………………….
Tel.:………………………………………………; fax:……………………………; e-mail:……………………………
Other information needed to identify the organisation:
…………………………………………………………………………………………………
(the data importer)
each a ‘party’; together ‘the parties’,

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

Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’,
‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive
95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free
movement of such data1
;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter
personal data intended for processing on his behalf after the transfer in accordance with his
instructions and the terms of the Clauses and who is not subject to a third country’s system
ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other
subprocessor of the data importer who agrees to receive from the data importer or from
any other subprocessor of the data importer personal data exclusively intended for
processing activities to be carried out on behalf of the data exporter after the transfer in
accordance with his instructions, the terms of the Clauses and the terms of the written
Subcontract;

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

(f) ‘technical and organisational security measures’ means those measures aimed at
protecting personal data against accidental or unlawful destruction or accidental loss,
alteration, unauthorised disclosure or access, in particular where the processing involves the
transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable
are specified in Appendix 1 which forms an integral part of the Clauses.
1
Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the
contract to stand alone.

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

Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will
continue to be carried out in accordance with the relevant provisions of the applicable data
protection law (and, where applicable, has been notified to the relevant authorities of the
Member State where the data exporter is established) and does not violate the relevant
provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services
will instruct the data importer to process the personal data transferred only on the data
exporter’s behalf and in accordance with the applicable data protection law and the
Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and
organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security
measures are appropriate to protect personal data against accidental or unlawful
destruction or accidental loss, alteration, unauthorised disclosure or access, in particular
where the processing involves the transmission of data over a network, and against all other
unlawful forms of processing, and that these measures ensure a level of security appropriate
to the risks presented by the processing and the nature of the data to be protected having
regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or
will be informed before, or as soon as possible after, the transfer that its data could be
transmitted to a third country not providing adequate protection within the meaning of
Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant
to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data
exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the
exception of Appendix 2, and a summary description of the security measures, as well as
a copy of any contract for subprocessing services which has to be made in accordance
with the Clauses, unless the Clauses or the contract contain commercial information, in
which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance
with Clause 11 by a subprocessor providing at least the same level of protection for the
personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer2
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its
instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it
agrees to inform promptly the data exporter of its inability to comply, in which case the
data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling
the instructions received from the data exporter and its obligations under the contract and
that in the event of a change in this legislation which is likely to have a substantial adverse
effect on the warranties and obligations provided by the Clauses, it will promptly notify
the change to the data exporter as soon as it is aware, in which case the data exporter is
entitled to suspend the transfer of data and/or terminate the contract;

2
Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a
democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a
necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of
criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the
protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some
examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia,
internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
(c) that it has implemented the technical and organisational security measures specified in
Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement
authority unless otherwise prohibited, such as a prohibition under criminal law to
preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that
request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its
processing of the personal data subject to the transfer and to abide by the advice of the
supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the
processing activities covered by the Clauses which shall be carried out by the data exporter
or an inspection body composed of independent members and in possession of the required
professional qualifications bound by a duty of confidentiality, selected by the data exporter,
where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing
contract for subprocessing, unless the Clauses or contract contain commercial information,
in which case it may remove such commercial information, with the exception of
Appendix 2 which shall be replaced by a summary description of the security measures in
those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and
obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with
Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to
the data exporter.

Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach
of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is
entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph
1 against the data exporter, arising out of a breach by the data importer or his subprocessor
of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter
has factually disappeared or ceased to exist in law or has become insolvent, the data importer
agrees that the data subject may issue a claim against the data importer as if it were the data
exporter, unless any successor entity has assumed the entire legal obligations of the data
exporter by contract of by operation of law, in which case the data subject can enforce its
rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order
to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer
referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their
obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the
data importer have factually disappeared or ceased to exist in law or have become insolvent,
the subprocessor agrees that the data subject may issue a claim against the data subprocessor
with regard to its own processing operations under the Clauses as if it were the data
exporter or the data importer, unless any successor entity has assumed the entire legal
obligations of the data exporter or data importer by contract or by operation of law, in which
case the data subject can enforce its rights against such entity. The liability of the
subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary
rights and/or claims compensation for damages under the Clauses, the data importer will
accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by
the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is
established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive
or procedural rights to seek remedies in accordance with other provisions of national or
international law.

Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority
if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data
importer, and of any subprocessor, which has the same scope and is subject to the same
conditions as would apply to an audit of the data exporter under the applicable data
protection law.
3. The data importer shall promptly inform the data exporter about the existence of
legislation applicable to it or any subprocessor preventing the conduct of an audit of the
data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data
exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is
established, namely………………………………………………………………………….

Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from
adding clauses on business related issues where required as long as they do not contradict the
Clause.

Clause 11
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on
behalf of the data exporter under the Clauses without the prior written consent of the data
exporter. Where the data importer subcontracts its obligations under the Clauses, with the
consent of the data exporter, it shall do so only by way of a written agreement with the
subprocessor which imposes the same obligations on the subprocessor as are imposed on
the data importer under the Clauses3

. Where the subprocessor fails to fulfil its data
protection obligations under such written agreement the data importer shall remain fully
liable to the data exporter for the performance of the subprocessor’s obligations under
such agreement.
2. The prior written contract between the data importer and the subprocessor shall also
provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the
data subject is not able to bring the claim for compensation referred to in paragraph 1 of
Clause 6 against the data exporter or the data importer because they have factually
disappeared or have ceased to exist in law or have become insolvent and no successor
entity has assumed the entire legal obligations of the data exporter or data importer by
contract or by operation of law. Such third-party liability of the subprocessor shall be
limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred
to in paragraph 1 shall be governed by the law of the Member State in which the data exporter
is established, namely ……………………………………
…………………………………………………………………………………………
3 This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data
importer under this Decision.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses
and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least
once a year. The list shall be available to the data exporter’s data protection supervisory
authority.

Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the
data importer and the subprocessor shall, at the choice of the data exporter, return all the
personal data transferred and the copies thereof to the data exporter or shall destroy all
the personal data and certify to the data exporter that it has done so, unless legislation
imposed upon the data importer prevents it from returning or destroying all or part of the
personal data transferred. In that case, the data importer warrants that it will guarantee the
confidentiality of the personal data transferred and will not actively process the personal
data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter
and/or of the supervisory authority, it will submit its data processing facilities for an audit
of the measures referred to in paragraph 1.
On behalf of the data exporter:
Name (written out in full): ………………………………………………………………………
Position: …………………………………………………………………………………………
Address: …………………………………………………………………………………………
Other information necessary in order for the contract to be binding (if any):
Signature……………………………………….
(stamp of organisation)
On behalf of the data importer:
Name (written out in full): ………………………………………………………………………
Position: …………………………………………………………………………………………
Address: …………………………………………………………………………………………
Other information necessary in order for the contract to be binding (if any):
Signature……………………………………….
(stamp of organisation)
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any
additional necessary information to be contained in this Appendix.
Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
………………………………………………………………………………………………………
………………………………………………………………………………………
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
………………………………………………………………………………………………………
………………………………………………………………………………………
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
………………………………………………………………………………………………………
………………………………………………………………………………………
Categories of data
The personal data transferred concern the following categories of data (please specify):
………………………………………………………………………………………………………
………………………………………………………………………………………
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
………………………………………………………………………………………………………
………………………………………………………………………………………
Processing operations
The personal data transferred will be subject to the following basic processing activities (please
specify):
………………………………………………………………………………………………………
………………………………………………………………………………………
DATA EXPORTER
Name:………………………………
Authorised Signature ……………………
DATA IMPORTER
Name:………………………………
Authorised Signature ……………………
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data
importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
…………………………………………………
ILLUSTRATIVE INDEMNIFICATION CLAUSE (OPTIONAL)
Liability
The parties agree that if one party is held liable for a violation of the clauses committed by the
other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost,
charge, damages, expenses or loss it has incurred.
Indemnification is contingent upon:
(a) the data exporter promptly notifying the data importer of a claim; and
(b) the data importer being given the possibility to cooperate with the data exporter in the
defence and settlement of the claim4
.
4 Paragraph on liabilities is optional