WHEREAS,    European data privacy and protection laws require EU/EEA-based data controllers or data exporters to ensure an adequate level of protection for data transfers to non-EU/EEA countries and such protection can for instance result from concluding so-called Model Contracts (which are also sometimes referred to as Standard Contractual Clauses) pursuant to Commission Decision 2010/87/EU of 5 February 2010;

WHEREAS,   this DPMC serves as a framework for existing and future Processing of Protected Data in that the Data Exporter and Data Importer may prepare, sign and add further Appendices (as applicable) to this DPMC to cover further Processing of Protected Data hereunder;

WHEREAS,   The Data Exporter, the Data Importer, and Sub-processor are entering into this DPMC to address their specific rights and obligations to protect the personal data collected by, or made available to, the Data Importer, and/or Sub-processor within the context of any Service by Data Exporter (the “Protected Data”). The Data Exporter is in agreement that the Data Importer or Sub-processor as data processor handles the Protected Data on behalf of Data Exporter, who remains being the data controller. The data controller shall be entitled to exercise the Data Exporter’s contractual rights and powers ensuing from the Data Exporter’s position as data controller (for the avoidance of doubt, the Data Exporter shall remain entitled to exercise these rights and powers in its own name at any time).

NOW, THEREFORE, in order to enable the Data Exporter and the Data Importer to exchange Protected Data in compliance with applicable laws and for other good and valuable consideration, the receipt of which is hereby acknowledged, the both parties enter into this DPMC as follows (for the avoidance of doubt, any provisions in this DPMC that do not contradict the Model Contract shall remain valid):

1. Definitions

The definitions used in this DPMC, which are written with a capital letter, and the abbreviations used, have the meaning defined either in this DPMC or in the Agreement:

• “the Sub-processor” means the processor which is engaged by the Data Exporter or the Data Importer who agrees to receive from the Data Exporter or 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 Articles;

• “Protected Data” shall mean any information relating to an identified or identifiable natural person. An identifiable 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;

• “Protected Data Breach” shall mean any security incident that is likely to have impact on the availability, integrity and/or confidentiality of the Protected Data processed by the Data Importer including but not limited to. discovery of unintended deletion of Protected Data, discovery of such data being accessible to resources that were not or are no longer authorized, discovery of unintended disclosure or data potentially having become compromised by a hacking attack or other external security threat;

• “Service” or “Services” shall mean the processing services of the Data Importer;

• “Applicable Data Privacy Laws” shall mean any data protection and privacy laws applicable to the provision of the Services.

• “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;

• “Model Contract” shall mean the standard contractual clauses for the transfer of personal data to processors established in third countries pursuant to Commission Decision 2010/87/EU of 5 February 2010;

• “personal data”, “special categories of data”, “controller”, “processor”, 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;

• “Processing” shall mean any operation or set of operations performed on Protected Data or on sets of Protected Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; and 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;

• “Articles” shall mean all provisions of this DPMC, unless provided otherwise in the relevant context;

• “Member State” shall mean any country within the EU/EEA and, for purposes of the Agreement and this DPMC, each country in which a Data Exporter is established;

• “Data Exporter” shall mean the TenMax Adtech Lab Co., Ltd. (“TenMax”), including affiliate that is controlled by, or is under common control with TenMax, regardless of their location, whether within or outside the EU/EEA;

• “Data Importer” shall mean TenMax, including affiliate that is controlled or under common control with TenMax, regardless of their location, whether within or outside the EU/EEA; Data Importer agrees to receive from the Data Exporter 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 Articles 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.

• “Data Subject(s)” shall mean any identified or identifiable natural person by virtue of his or her Protected Data, that 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.

• “Data Subject Rights” shall mean any rights that a Data Subject may claim under Applicable Data Privacy Laws, including, but not limited to, the right to (i) access, rectification and erasure of Protected Data, (ii) object to or restrict the Processing of Protected Data, (iii) withdraw consent, (iv) data portability and (v) lodge a complaint, as the case may be.

• “Data Privacy Impact Assessment” shall mean a structured and repeatable analysis of the handling of Protected Data that provides information to identify, evaluate and mitigate data privacy and protection risks and to describe adequate and proportionate measures designed to reduce the impact and likelihood of data privacy and protection risks including technical and organizational measures.

2. Term

This DPMC becomes effective as of 25 May, 2018 and will continue for the Agreement Term, as defined in the Agreement.

3. Assignment of Data Processing; Scope and Duration

• The Data Exporter as data controller hereby assigns to the Data Importer and Sub-processor as data processor the Processing of Protected Data (the “Assignment”) in accordance with the Agreement.

• Scope and purpose of Assignment. The Assignment is limited in scope to the Processing of Protected Data, in particular of the employees, customers or contractors of Data Exporter, for the provision of the Services. The sole purpose of the Processing of Protected Data by the Data Importer and the Sub-processor is for the provision of the Services. The Duration Assignment lasts for the term of the DPMC.

4. Third-party beneficiary clause

• (1) The data subject can enforce against the data exporter this Clause, Clause 5(2) to (9), Clause 6(1) to (5), and (7) to (9), Clause 7(1) and (2), Clause 8, Clause 9(2), and Clause 10 to 13 as third-party beneficiary.

• The data subject can enforce against the data importer this Clause, Clause 6(1) to (5) and (7), Clause 7, Clause 8, Clause 9(2), and Clause 10 to 13, 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 6(1) to (5) and (7), Clause 7, Clause 8, Clause 9(2), and Clause 10 to 13, 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 Articles.

• 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.

5. Obligations of the data exporter

The data exporter agrees and warrants:

• 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 to this DPMC;

• 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 6(2) and Clause 9(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 Articles 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 Articles, unless the Articles 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 12 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 Articles; and

• that it will ensure compliance with Clause 5(1) to (9).

6. Obligations of the data importer

The data importer agrees and warrants:

• to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Articles; 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 Articles, 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 in Appendix 2 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 Articles 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 Articles, or any existing contract for sub-processing, unless the Articles or contract contain commercial information, in which case it may remove such commercial information;

• 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 12;

• to send promptly a copy of any Sub-processor agreement it concludes under the Articles to the data exporter.

7. Liability

• The Data Exporter and the Data Importer agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 4 or in Clause 12 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 4 or in Clause 12, 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 4 or in Clause 12 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 Articles 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 Articles.

8. Mediation and jurisdiction

• The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Articles, 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.

9. 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 6 (2).

10. Governing Law

The DPMC shall be governed by the law of the Member State in which the data exporter is established.

11. Variation of the contract

The parties undertake not to vary or modify the Articles. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Articles.

12. Sub-processing

• The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Articles without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Articles, 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 Articles. Where the Sub-processor 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 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 4 for cases where the data subject is not able to bring the claim for compensation referred to in Clause 7 (1) 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 Articles.

• 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.

• The data exporter shall keep a list of sub-processing agreements concluded under the Articles and notified by the data importer pursuant to Clause 6 (10), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

13. 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 above in paragraph 1.​