Terms of service
The terms ‘us’, ‘its’, ‘ours’ and/or ‘we’, as used herein, shall refer to us, Getform and/or our affiliates, assignees, successors and/or brands.
Changes to the Terms
Getwebcraft reserves the right to modify these Terms at any time. Your continued use of the Service following the posting of any changes to these Terms constitutes acceptance of those changes. As a general rule, we will try to not diminish the functionalities available to your Service tier, and in the case of increased or newly available functionalities, we will inform you before their activation, including the timeframe to accept new payment terms.
Therefore, we ask that you check and review these Terms for such changes on an occasional basis. Should you not agree to any provision of these Terms or any changes we make thereof, we ask and advise that you do not use or continue to access the Site immediately.
You may browse the Site and view our content without registering, but as a condition to using certain aspects of the Service, you are required to register with Getform and provide accurate, truthful, and complete registration information (including, but not limited to your email address and a password you will use to access the Service) and to keep your registration information accurate and up-to-date.
You will sign up with your email address and full name. You will be prompted to make a user ID. Your user ID must not contain spaces, symbols, obscene or profane words, email addresses, website addresses or representations of email addresses or website addresses, or our business name. You will be sent a verification email and once we are able to verify your email address, you will be bound by these terms until such time you delete your account with us.
You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
We reserve the right, at our sole and final discretion, to deactivate, freeze, suspend or terminate any account upon any factual or alleged breach of these Terms. You must notify us immediately of any change in your eligibility to use our platform, or if you suspect a breach of security or unauthorized use of your account.
You acknowledge and agree that we may report any activity that we believe may violate any law to law enforcement, regulators or other relevant third parties, and that any violation of the aforementioned provisions may result in the immediate termination of your access to the Site or our Services.
Getwebcraft does not knowingly collect any kind of information from any person under the age of thirteen (13) and will delete any related information thereto.
User Code of Conduct
As our user, you agree not to undertake, motivate, or facilitate the use or access of the Site or the Services for the following:
- incorporate into your online forms created using our Services any text or other content that is not created by you, not provided by Getform or you are not otherwise permitted to use;
- post any misleading or incorrect information in any online forms created using our Services;
- publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful;
- include in Getform forms any material, including, but not limited to text, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights;
- violate any local or other law or regulation, or any order of a court;
- use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Website, Services or Content;
- copy, store or otherwise access any information contained on the Website, Services or Content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including but not limited to, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our Website or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- systematically retrieve data or other content from our Website or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Website, or any individual element within the Website, or use, Our name, any Our trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Our express written consent; or
advocate, encourage, or assist any third party in doing any of the foregoing.
Any content you upload will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you are required to grant us a royalty-free, perpetual, irrevocable and non-exclusive licence to use, reproduce, distribute, display, modify and edit the content in connection with the Website.
We have the right to remove any online form you create using our Services if, in our opinion, your online form does not comply with the content standards set out in these terms.
We reserve the right to remove any post which breaches these terms and terminate the membership of the user.
Paid Subscriptions and Refunds
- We offer three subscription plans — Free, Plus, Pro.
- These subscription plans are rolling with a choice to make payments either monthly or annually.
- If you choose to upgrade to a paid subscription-based plan, you authorize Getwebcraft or its payment processor to charge the applicable recurring subscription fees to your designated billing payment method.
- Charges from Getform will appear on your bank statement as GETFORM.COM.
- All paid subscriptions will automatically renew for the same term, monthly or annually, using the payment method on file unless you change or discontinue the Service. If you are not using the service, we will not consider it as a discontinuance of the Service. To discontinue the Service, please notify of this by changing your subscription plan in the Billing section of your account.
- Price is based on the selected subscription plan and the number of responses received via the Service, regardless of the number of online forms active during the period of subscription and the number of extra users added to the account.
- All upgrades and downgrades are effective immediately.
- You have the right to request a full refund within ten (10) days of a monthly subscription purchase and within thirty (30) days of an annual subscription purchase. To request a refund, contact us at email@example.com. We will review your request and at our discretion approve all requests that have followed the correct process.
- All refunds are issued to the method of original payment.
- If you cancel the Services, your cancellation takes effect immediately. You will not be entitled to any refund of any unused part of your payment for the Services.
Payment Processing Terms
- We use payment platforms provided by globally accepted third-party payment processors. Accordingly, the processing of payments will be subject to the fees, terms, conditions and privacy policies of such payment processors. Getwebcraft is not responsible for any and all errors, fees and currency conversion fees by the payment processors.
- If you elect to use a direct payment gateway in order to complete your purchase, then the third-party payment processors will collect and store credit card data. Your purchase transaction data will only be stored as long as it is necessary to complete your transaction with us. After such order or transaction is complete, your purchase transaction information will be deleted.
Disputes & Chargebacks
You must provide us with valid and current billing information. Except as expressly set forth herein, all payment charges are final and non-cancelable. If we detect any chargeback or if any payment is not received by us or our payment processors for any reason, you will promptly pay us any and all amounts due to us upon notice. Any failure or inability by us to process any payment hereunder does not relieve you from your payment obligations.
A chargeback is typically caused by a situation when a customer disputes a charge that appears on their bank or payment processing statement. A chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed chargebacks for: (i) customer disputes; (ii) unauthorized or improperly authorized transactions; (iii) transactions that do not comply with payment processor network rules or are allegedly unlawful or suspicious; or (iv) any reversals for any reason by our payment processor or the institutions handling the transaction.
When a chargeback is issued, you are immediately liable to Getwebcraft for the full amount of payment of the chargeback, plus any associated fees, fines, expenses or penalties (including those assessed by our payment processor or the financial institutions handling the transaction). Accordingly, you hereby represent and warrant that you expressly appoint Getwebcraft as your agent, with full power to recover these amounts by debiting your account or setting off any amounts owed to you by us.
The term hereof shall begin on the date that comes first among: (i) first access to the Site; (ii) your first access or execution of our Services; or (iii) Getwebcraft begins providing its Services to you.
Getwebcraft does not guarantee that the Website, or any content on it, will always be available or be uninterrupted. We may discontinue, suspend, withdraw, or restrict the availability of all or any part of our Website for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
Getwebcraft reserves the right to terminate your access to the Service or discontinue the Service (including without limitation, the availability of any feature, database, or content), without any advance notice. Getwebcraft may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
These Terms, along with any and all licenses granted hereof may or will automatically terminate if you breach any of the terms and conditions contained herein. Upon termination for breach, your rights to use our Site, our Services and any information provided or generated thereby shall cease and you shall not be entitled to any compensation, credit, remedy or refund of any nature. In this case, please contact our support department in order to initiate the process of receiving a backup copy of your user data, if any, subject to the terms and conditions of our providers, such as Amazon Web Services.
User Representations and Warranties
You hereby represent, warrant and covenant to Getwebcraft that: (i) your use of our Site and Services, and all your uploaded and used data shall be at all times compliant with these Terms and all local, state, federal and international laws and regulations applicable to you and your organization; (ii) you have obtained all necessary rights, releases and permissions to provide any data to Getform and its affiliates, licensors and agents; and to grant the rights granted to Getwebcraft in these Terms, including without limitation any intellectual property rights or rights of publicity, privacy and any use, collection and disclosure authorized.
The images, texts, posts, information, photographs and other content and media displayed on or through the Site and our Services are not necessarily available and any results therefrom – which we cannot ultimately control – are out of our ultimate and complete scope. Some or all of the images shown in the Site are licensed and/or purchased stock photos, and are only shown for illustration purposes. Some or all of the content displayed in the Site is undertaken by third parties, and does not reflect Getwebcraft team’s opinions, nor do Getwebcraft, its affiliates, subsidiaries, officers, employees and agents guarantee its actual veracity or make any endorsement thereof.
You acknowledge and agree that Getwebcraft shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or material or information created, obtained or accessible through the Services or Site. Each registered user is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information.
Intellectual Property Rights
The Site, the Services and all of the content displayed therein (including, but not limited to designs, text, graphics, pictures, information, the software, code, proprietary methods and systems used to provide the Site or Services) are the sole property of Getwebcraft and are, as such, fully protected by the appropriate international copyright and other intellectual property rights laws. Unless we expressly state otherwise or as allowed by our Terms of service, your rights do not include: (i) publicly performing or publicly displaying the Service, (ii) modifying or otherwise making any derivative uses of the Service or any portion thereof; (iii) downloading (other than page caching) of any portion of the Service or any information contained therein; (iv) reverse engineering or accessing the Service in order to build a competitive product or service; (v) using the Service other than for its intended purposes.
Respective title holders may or may not be affiliated with us or our affiliates, partners and advertisers. No section hereof shall be construed as intent to grant to you any right transfer or interest in the Site or our Services, in whole or in part.
You acknowledge and agree that any and all infringing use or exploitation of copyrighted content in the Site and/or the Services may cause us, our affiliates, licensors or content providers irreparable injury, which may not be remedied solely at law, and therefore our affiliates, licensors or content providers may seek remedy for breach of these Terms, either in equity or through injunctive or other equitable relief.
Getwebcraft takes copyright infringement matters seriously and is ready to remove any allegedly or factually infringing content displayed on the Site upon due notice and request by the title holder.
The following procedure will apply for any content displayed through the Site that allegedly infringes the intellectual property rights of you or of any third party. You must notify us of your claim with the subject: "Takedown Request". Once received, Getwebcraft will study and consider your claim and, if we have reasons to believe any content on the Site infringes on another’s copyright, Getwebcraft may delete it, disable or otherwise stop displaying it.
Your notification claim must be in writing and must at least contain the following information: (i) your signature and identification, or the ones the person authorized to act on behalf of you or the title holder; (ii) a clear and concise description of the content of which its copyright has allegedly been infringed; (iii) contact information (e.g. address and email); and (iv) a statement, under penalty of perjury, indicating that you have a good faith belief that the information provided in your claim is true and accurate.
In order to access our Services, Getwebcraft grants you a limited, non-exclusive, revocable and non-transferable license to utilize and access the Services. You are prohibited from duplicating, re-engineering, reverse engineering, modifying or otherwise using the Services, in whole or in part. Getwebcraft does not grant any express or implied right to you under any patents, trademarks, copyrights or trade secret information; and you shall have no right, either directly or indirectly, to own, use, loan, sell, rent, lease, license, sublicense, assign, copy, translate, modify, adapt, improve or create any new or derivative works from, or display, distribute, perform or in any way exploit any downloaded Services and computer applications, in whole or in part.
In order to access and use our Services, You hereby grant Getwebcraft an unlimited, non-exclusive, sub-licensable, assignable, royalty-free, perpetual, irrevocable, for all the countries and territories through the world, right and license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes), communicate, publish, publicly perform, publicly display and distribute such any content you may upload, disseminate, deliver, create or transfer any post, original audio file, message, chat, files uploaded, data inputted, e-mails sent, or otherwise any content delivered to Getwebcraft via the Site or the Services. You represent and warrant to Getwebcraft that you have all rights, authorizations or otherwise hold sufficient title for any and all content submitted to Getform as set forth herein.
In the event that you provide us any ideas, thoughts, suggested improvements or other feedback related to the Site or the Services, you agree we may use this Feedback to modify our services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true unless we have entered into a separate agreement with you that provides otherwise.
The Services and all included content are provided on an “as is” and “as available” basis without warranty of any kind, whether express or implied. Getwebcraft, and its affiliates, clients, agents, officers, licensors and/or distributors, do not make, and hereby disclaim, any and all express, implied or statutory warranties, either by statute, common law, custom, usage of trade, course of dealing or otherwise, however arising, including implied warranties of description, quality, fitness for a particular purpose, non-infringement, non-interference with use.
Getwebcraft does not guarantee that the Website will be secure or free from bugs or viruses.
You are responsible for configuring your information technology, computer programs and platform to access our Website. You should use your own virus protection software.
You must not misuse our Website by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorized access to our Website, the server on which our Website is stored, or any server, computer or database connected to our Website. You must not attack our Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence. We will report any such breach to the relevant law enforcement authorities, and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately.
We cannot guarantee the service without any faults. If there is any problem with the Website, users should contact us, and we will try to rectify/fix the issue as soon as reasonably practicable.
Limitation of Liability
Getwebcraft cannot be held liable for any damages. Getwebcraft shall not be liable for any statements or conduct of any third party using the Service. Getwebcraft assumes no responsibility for the timeliness, deletion, miss-delivery or failure to store any User content, communication or personal settings. You agree to indemnify and hold Getwebcraft, its officers, employees, affiliates, contractors, and suppliers, exempt from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, transmit, post or otherwise make available through Getwebcraft.
To the maximum extent permitted by applicable law, Getwebcraft shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any loss of profit or revenues, whether incurred directly or indirect, or any loss of data, use, good-will, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Services, including without limitation, any defamatory, offensive or illegal conduct of other users or third parties; (iii) any content obtained from the Services; or (iv) unauthorized access, use or alteration of your transmissions or content. In no event shall the aggregate liability of Getwebcraft exceed the greater of one hundred U.S. dollars (U.S. $100.00) or the amount you paid Getwebcraft, if any, in the past six months for the Services giving rise to the claim. The limitations of this subsection shall apply to any theory of liability, whether based on warranty, contract, statute, tort (including negligence) or otherwise, and whether or not Getwebcraft has been informed of the possibility of any such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
Legislation of some states/countries does not allow certain limitations of liability, and henceforth this limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
You shall indemnify, hold harmless, and defend Getform, its affiliates, clients, agents, officers, licensors, distributors and/or any authorized representatives, and the officers, directors and employees of each (jointly, the “Getform´s Indemnitees”) from and against any and all third party liabilities, claims, causes of action, suits, losses, damages, fines, judgments, settlements and expenses (including any and all reasonable outside attorneys’ fees and court costs) which may be suffered, made or incurred by any of such Getform´s Indemnitees arising out of or relating to: (i) any breach of any warranties, representations and/or covenants made by you hereunder (to the extent not arising substantially from any breach hereof by Getform); and/or (ii) any third party claim arising out of or in relation to Getform or use thereof in combination with your business platform, including without limitation, any claim that Getform violates, infringes, or misappropriates any proprietary or intellectual property right of any third party, including without limitation, any privacy right of any person, or violates any applicable law.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Getwebcraft without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. Any rights not expressly granted herein are thereby reserved. These terms will inure to the benefit of any successors of the parties. We reserve the right, at any time, to transfer some or all of Getform’ assets in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
Getform is no liable for any failure of performance on its obligations as set forth herein, where such failure arises from any cause beyond Getform' reasonable control, including but not limited to, electronic, power, mechanic or Internet failure, from acts of nature, forces or causes beyond our control, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
The titles of paragraphs in these Terms are shown only for ease of reference and will not affect any interpretation therefrom.
These Terms set forth the entire agreement between the parties hereof and may not be altered or amended except in writing signed by each both parties.
You hereby acknowledge and agree that if these Terms are not specifically enforced, Getform will be irreparably damaged, and therefore you agree that Getform shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of these Terms, in addition to any other available remedies.
These Terms may be translated into other languages, but English shall be and remain the official language of this agreement and in any conflict between the English language version and any other version, the English language version shall control.
The Site may allow you to subscribe to our newsletter service, which may be provided by us or through an authorized third party. Through our newsletters, you may receive information according to your subscriber preferences. As our subscriber, you will receive a conspicuous communication indicating any subscription and you will be able to select the amount or type of emails received by you. If you wish to unsubscribe, you will find the ‘Unsubscribe’ and similar links on our communications.
You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S.A., Canada, European Union or other government’s embargo, or that has been designated as a “terrorist supporting” country; and (ii) you are not listed on any government list of prohibited or restricted parties or activities.
EU-US Privacy Shield
t is made of note that the Court of Justice of the EU has validated the use of Standard Contractual Clauses or SCCs as a mechanism for transferring data outside the EU; therefore, when we process any of Getform users’ PII to further store it on Amazon servers or other processing contractors outside the EU, we perform it under full compliance with the GDPR, and our customers can rely on the SCCs included in our Terms of Service.
I The SCCs are available here for all of our users in various regions of the world including the EU and USA, forming an integral part of these Terms of service.
You and Getwebcraft are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Getwebcraft's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
These Terms are governed in accordance with the laws of Cyprus and are subject to the jurisdiction of the courts of Cyprus.
Questions and Complaints
Klimentos 41-43, Klimentos Tower, Flat/Office 25, 1061, Nicosia, Cyprus
Date of last effective update is October 19, 2020.
Standard Сontractual Сlauses (SCCs)
STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OR PERSONAL DATA out of the European Union, 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.
The data exporting organization is Getwebcraft Limited. The data importing organization is you, a registered user of Getform.
Together, each a ‘party’; together ‘the parties’, and they agree on the following Standard 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, as further specified by the parties in writing from time to time.
Clause 1. Definitions
- ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘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;
- ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- ‘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;
- ‘technical and organizational 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 by the parties from time to time and as per the Terms of service of Getwebcraft Limited, which form an integral part of these Clauses.
Clause 3. Third-party beneficiary clause
- 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.
- 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.
- The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
- 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.
The data exporter agrees and warrants:
Clause 4. Obligations of the data exporter
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified by the parties to this contract;
- 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;
- that it will ensure compliance with the security measures;
- 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;
- to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
The data importer agrees and warrants:
Clause 5. Obligations of the data importer (1)
- 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;
- 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;
- that it has implemented the technical and organizational security measures specified by the parties before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- 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;
- any accidental or unauthorized access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
- 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;
- 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;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information 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;
- that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub-processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6. Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7. Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against its third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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
- 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.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9. Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely Cyprus.
Clause 10. Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11. Sub-processing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses (1). Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely Cyprus.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12. Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.