Standard Contractual Clauses
The purpose of these standard contractual clauses to provide appropriate safeguards within the meaning of Article 46(1) and (2)(c) of Regulation (EU) 2016/679 for the transfer by a controller or processor of personal data processed subject to that Regulation (data exporter) to a controller or (sub-)processor whose processing of the data is not subject to that Regulation (data importer).The standard contractual clauses also set out the rights and obligations of controllers and processors with respect to the matters referred to in Article 28(3) and (4) of Regulation (EU) 2016/679, as regards the transfer of personal data from a controller to a processor, or from a processor to a sub-processor.
Each “Party”; together “Parties”, have agreed on the following Contractual Clauses (“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.
These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1), and Article 46 (2)(c) of GDPR and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of GDPR, provided they are not modified, except to add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the GDPR.
These Clauses apply with respect to the transfer of personal data as specified in Clause 2.
1.1. The terms defined below shall have the same meaning as in GDPR; the terms, therefore shall be read and interpreted in the light of the provisions of GDPR
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 data;
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 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;
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 organizational security measures‘ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
1.2 These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in GDPR.
Details of the transfer
The details of the transfer and in particular the special categories of Personal Data that are transferred and the purposes for which they are transferred, are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
3.1 Data subjects may invoke and enforce these Clauses, as third party beneficiaries, against the data exporter and / or data importer, with the following exceptions:
(i) Clauses regarding purpose and scope,third party beneficiaries, definition, hierarchy, and description of transfer
(ii) Clause on documentation compliance
(iii) Clause on notification
(iv) Clause regarding use of sub-processor
(v) Clause regarding liability;
(vi) Indemnification clause;
(vii) Supervision clause;
(viii) Non-compliance and jurisdiction clauses i.
Obligations of the Data Exporter
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under this Clause as a safeguard:
4.1. 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;
4.2. 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 and the Data Importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix 1.
4.3. that the Data Importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
4.4. 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, unauthorized 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;
4.5. that it will ensure compliance with the security measures;
4.6. 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 GDPR;
4.7. 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;
4.8. 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 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;
4.9. 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
4.10. that it will ensure compliance with Clause 4(a) to (i)
4.11. not only Data Exporter but also Data Importer shall provide the data subject with a copy of the Clauses upon request. To the extent necessary to protect business secrets or other confidential information, including the measures described in Appendix 1I, the Parties may redact the text of the Appendixes to these Clauses prior to sharing a copy, but shall provide a meaningful summary where otherwise the data subject would not be able to understand the content of the Appendixes. This is notwithstanding the obligations of the data exporter under Articles 13 and 14 of GDPR, in particular to inform the data subject about the transfer of special categories of.
Obligations of the Data Importer
The Data Importer agrees and warrants:
5.1. 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;
5.2. to process the personal data only for the specific purpose(s) of the transfer, as set out in Appendix 1.
5.3. that if the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
5.4. that the processing by the data importer shall only take place for the duration specified in Appendix 1. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to the requirement for the data importer to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements of the GDPR.
5.5. that the data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
5.6. that in the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
5.7. that where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Appendix 2.
5.8. that the data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
5.9. that the data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
5.10. 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;
5.11. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the Personal Data transferred;
5.12. 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 unauthorized access, and
iii.any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
5.13. that the data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Appendix 1I the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
5.14. 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;
5.15. 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;
5.16. that data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
5.17. that the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
5.18. 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, 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;
5.19. that, in the event of sub-processing, it has previously informed the Data Exporter and obtained its prior written consent;
5.20. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
5.21. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the Data Exporter.
5.22. To cooperate in good faith with and assist the Data Exporter in any way necessary to enable the data exporter to comply with its obligations under the GDPR, notably to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the Data Importer.
6.1. 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 sub-processor is entitled to receive compensation from the Data Exporter for the damage suffered.
6.2. Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses. Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.
6.3. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
6.4. The Parties agree that if the data exporter is held liable for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
6.5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties. The Parties agree that if one Party is held liable, it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
6.6. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
6.7. 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 its 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.
6.8. The Data Importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities and may not invoke the conduct of a sub-processor
6.9. 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.
6.10. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
6.11. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority;
(ii) refer the dispute to the competent courts.
6.12. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
6.13. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
6.14. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Mediation and jurisdiction
7.1. 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:
i. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
ii. 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.
Cooperation with supervisory authorities
8.1. 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.
8.2. 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.
8.3. 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).
Governing Law and Choice of Forum
9.1. The Clauses shall be governed by the law of the Member State in which the Data Exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights.
9.2. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
9.3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
9.4. The Parties agree to submit themselves to the jurisdiction of such courts.
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.
11.1. 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. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. 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. 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.
11.2. 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 the 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.
11.3. 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.
11.4. 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.
11.5. The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and subsequent amendments.
11.6. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the subprocessor to fulfil its obligations under that contract.
11.7. The data importer shall agree a third party beneficiary clause with the sub-processor whereby, in the event of bankruptcy of the data importer, the data exporter shall be a third party beneficiary to the sub-processor contract and shall have the right to enforce the contract against the sub-processor, including where applicable by instructing the sub-processor to erase or return the personal data.
Obligation after the termination of personal data processing services
12.1. 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.
In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Local laws affecting compliance with the Clauses
14.1. The Parties warrant that they have no reason to believe that the laws in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) GDPR, are not in contradiction with the Clauses.
14.2. The Parties declare that in providing the warranty in Article 14.1, they have taken due account in particular of the following elements: (i) the specific circumstances of the transfer, including the content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred; (ii) the laws of the third country of destination relevant in light of the circumstances of the transfer, including those requiring to disclose data to public authorities or authorizing access by such authorities, as well as the applicable limitations and safeguards; (iii) any safeguards in addition to those under these Clauses, including the technical and organizational measures applied during transmission and to the processing of the personal data in the country of destination.
14.3. The data importer warrants that, in carrying out the assessment under Article 14.2, it has made best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses
Obligations of the data importer in case of government access requests
15.1.1. The data importer agrees to promptly notify the data exporter and, where possible, the data subject (if necessary with the help of the data exporter) if it: (i) receives a legally binding request by a public authority under the laws of the country of destination for disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; EN 15 EN (ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
15.1.2. If the data importer is prohibited from notifying the data exporter and / or the data subject, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicate as much information and as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them upon request of the data exporter.
15.1.3. To the extent permissible under the laws of the country of destination, the data importer agrees to provide to the data exporter, in regular intervals for the duration of the contract, the greatest possible amount of relevant information on the requests received (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.).
15.1.4. The data importer agrees to preserve the information pursuant to Article 15.1.1 to 15.1.3 for the duration of the contract and make it available to the competent supervisory authority upon request.
15.1.5. Article 15.1.1 to 15.1.3 are notwithstanding the obligation of the data importer pursuant to termination clause to promptly inform the data exporter where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
15.2.1. The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Article 15.1.5.
15.2.2. The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.
15.2.3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request
Non-compliance with the Clauses and termination
16.1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
16.2. 16.2 In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated.
16.3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
16.4. Personal data that has been transferred prior to the termination of the contract pursuant to Article 16.3 shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
16.5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
17.1. An entity that is not a Party to these Clauses may, with the agreement of the Parties,
accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
17.2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall
become a Party to these Clauses and have the rights and obligations of a data
exporter or data importer in accordance with its designation in Annex I.A.
17.3. The acceding entity shall have no rights or obligations arising under these Clauses
from the period prior to becoming a Party.
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.
The Data Exporter’s business or organization type is (please specify briefly your activities relevant to the transfer):
☐ Central government
☐ Charitable and voluntary
☐ Education and childcare
☐ Finance, insurance and credit
☐ General business
☐ IT, digital, technology and telecoms
☐ Justice and policing
☐ Land and property services
☐ Legal and professional advisers
☐ Local government
☐ Marketing and research
☐ Membership association
☐ Retail and manufacture
☐ Social care
☐ Trade, employer associations, and professional bodies
☐ Traders in personal data
☐ Transport and leisure
☐ Utilities and natural resources
☐ Other – Please add details:
The data exporter is using the personal data which is being transferred for the following purposes or activities:
☐ Standard business activities, which apply to most businesses and organizations
☐ Staff administration, including permanent and temporary staff, including appointment or removals, pay, discipline; superannuation, work management, and other personnel matters in relation to the data exporter’s staff.
☐ Advertising, marketing and public relations of the data exporter’s own business or activity, goods or services.
☐ Accounts and records, including
• keeping accounts relating to the data exporter’s business or activity;
• deciding whether to accept any person or organization as a customer;
• keeping records of purchases, sales or other transactions, including payments, deliveries or services provided by the data exporter or to the data exporter;
• keeping customer records
• records for making ﬁnancial or management forecasts; and
• other general record keeping and information management.
☐ Accounting and auditing services
☐ Administration of justice, including internal administration and management of courts of law, or tribunals and discharge of court business.
☐ Administration of membership or supporter records.
☐ Advertising, marketing and public relations for others, including public relations work, advertising and marketing, host mailings for other organizations, and list broking.
☐ Assessment and collection of taxes, duties, levies and other revenue
☐ Beneﬁts, welfare, grants and loans administration
☐ Canvassing, seeking and maintaining political support amongst the electorate.
☐ Constituency casework on behalf of individual constituents by elected representatives.
☐ Consultancy and advisory services, including giving advice or rendering professional services, and the provision of services of an advisory, consultancy or intermediary nature.
☐ Credit referencing, including the provision of information by credit reference agencies relating to the ﬁnancial status of individuals or organizations on behalf of other organizations
☐ Data analytics, including profiling
☐ Debt administration and factoring, including the tracing of consumer and commercial debtors and the collection on behalf of creditors, and the purchasing of consumer or trade debts from business, including rentals and installment credit payments.
☐ Education, including the provision of education or training as a primary function or as a business activity.
☐ Financial services and advice including the provision of services as an intermediary in respect of any ﬁnancial transactions including mortgage and insurance broking
☐ Fundraising in support of the objectives of the data exporter
☐ Health administration and services, including the provision and administration of patient care.
☐ Information and databank administration, including the maintenance of information or databanks as a reference tool or general resource. This includes catalogs, lists, directories and bibliographic databases.
☐ Insurance administration including the administration of life, health, pensions, property, motor and other insurance business by an insurance firm, an insurance intermediary or consultant
☐ IT, digital, technology or telecom services, including use of technology products or services, telecoms and network services, digital services, hosting, cloud and support services or software
☐ Journalism and media, including the processing of journalistic, literary or artistic material made or intended to be made available to the public or any section of the public.
☐ Legal services, including advising and acting on behalf of clients.
☐ Licensing and registration, including the administration of licensing or maintenance of ofﬁcial registers.
☐ Not-for-proﬁt organizations’ activities, including
• establishing or maintaining membership of or support for a not-for-profit body or association, and
• providing or administering activities for individuals who are either members of the not-for-profit body or association or have regular contact with it.
☐ Pastoral care, including the administration of pastoral care by a vicar or other minister of religion.
☐ Pensions administration, including the administration of funded pensions or superannuation schemes.
☐ Procurement, including deciding whether to accept any person or organization as a supplier, and the administration of contracts, performance measures and other records.
☐ Private investigation, including the provision on a commercial basis of investigatory services according to instruction given by clients
☐ Property management, including the management and administration of land, property and residential property, and the estate management of other organizations.
☐ Realizing the objectives of a charitable organization or voluntary body, including the provision of goods and services in order to realize the objectives of the charity or voluntary body.
☐ Research in any ﬁeld, including market, health, lifestyle, scientiﬁc or technical research.
☐ Security of people and property, including using CCTV systems for this purpose.
☐ Trading/sharing in personal information, including the sale, hire, exchange or disclosure of personal information to third parties in return for goods/services/beneﬁts.
☐ Other activities (please provide details):
The Data Importer is a Singapore based technology company which provides to the Data Exporter a growth management platform for its multichannel marketing activities.
The Data Exporter may submit Personal Data to the Data Importer and its Affiliates, the extent of which is determined and controlled by the Data Exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
-Prospective customers, customers, resellers, referrers, business partners, and vendors of the Data Exporter (who are natural persons);
-Employees or contact persons of the Data Exporter’s prospective customers, customers, resellers, referrers, subcontractors, business partners, and vendors (who are natural persons);
-Employees, agents, advisors, and freelancers of the Data Exporter (who are natural persons); and/or
-Natural persons authorized by the Data Exporter to use the services provided by the Data Importer to the Data Exporter.
Categories of Data
The personal data transferred concern the following categories of data:
The Data Exporter may submit Personal Data to the Data Importer and its Affiliates, the extent of which is determined and controlled by the Data Exporter in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data:
☐ Personal details, including any information that identiﬁes the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, and physical description.
☐ Family, lifestyle and social circumstances, including any information relating to the family of the data subject and the data subject’s lifestyle and social circumstances, including current marriage and partnerships, marital history, details of family and other household members, habits, housing, travel details, leisure activities, and membership of charitable or voluntary organizations.
☐ Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualiﬁcations, skills, training records, professional expertise, student and pupil records.
☐ Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, health and safety records, performance appraisals, training records, and security records.
☐ Financial details, including information relating to the ﬁnancial affairs of the data subject, including income, salary, assets and investments, payments, creditworthiness, loans, beneﬁts, grants, insurance details, and pension information.
☐ Goods or services provided and related information, including details of the goods or services supplied, licenses issued, and contracts.
☐ Personal data relating to criminal convictions and offenses
☐ Other (please provide details of other data subjects):
The personal data transferred will be subject to the following basic processing activities defined in this addendum.
☐ Receiving data, including collection, accessing, retrieval, recording, and data entry
☐ Holding data, including storage, organization and structuring
☐ Using data, including analyzing, consultation, testing, automated decision making and profiling
☐ Updating data, including correcting, adaptation, alteration, alignment and combination
☐ Protecting data, including restricting, encrypting, and security testing
☐ Returning data to the data exporter or data subject
☐ Erasing data, including destruction and deletion
A- The Data Importer/sub-processor has implemented and shall maintain a security program in accordance with industry standards.
B- More specifically, the Data Importer/sub-processor’s security program shall include:
Access of Data Importer’s internal operations
The Data Importer/sub-processor implements optimal measures in order to prevent unauthorized persons from gaining access to the data processing equipment where the personal data are processed or used, including:
– establishing security areas;
– protection and restriction of access paths;
– establishing access authorizations for employees and third parties, including the respective documentation;
– all access to the data center where personal data are hosted is logged, monitored, and tracked; and
– The data center where personal data are hosted is secured by a security alarm system, and other appropriate security measures.
Access of the system
The Data Importer implements optimal measures to prevent their data processing systems from being used by unauthorized persons, including:
– use of proper encryption technologies;
– identification of the terminal and/or the terminal user to the Data Importer/sub-processor and processing systems;
– automatic temporary lock-out of the user ID when several erroneous passwords are entered and
– all access to data content is logged, monitored, and tracked.
Access to Use Specific Areas of Data Processing
The Data Importer/sub-processor commits that the persons entitled to use their data processing system are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:
– employee policies and training in respect of each employee’s access rights to the personal data;
– allocation of individual terminals and /or terminal user, and identification characteristics exclusive to specific functions;
– monitoring capability in respect of individuals who delete, add or modify the personal data;
– release of data only to authorized persons, including allocation of differentiated access rights and roles;
– use of adequate encryption technologies; and control of files, controlled and documented destruction of data.
Data Importer/sub-processor implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:
– use of adequate firewall, VPN and encryption technologies to protect the gateways and pipelines through which the data travels;
– certain highly confidential employee data (e.g., personally identifiable information such as National ID numbers, credit or debit card numbers) is also encrypted within the system; and
– providing user alert upon incomplete transfer of data (end to end check); and as far as possible, all data transmissions are logged, monitored and tracked.
Data Importer/sub-processor implements suitable input control measures, including:
– an authorization policy for the input, reading, alteration and deletion of data;
– authentication of the authorized personnel;
– protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;
– utilization of unique authentication credentials or codes (passwords);
– automatic log-off of user ID’s that have not been used for a substantial period of time; and
– proof established within Data Importer/sub-processor’s organization of the input authorization; and
– electronic recording of entries.
Data Importer/sub-processor will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Data Importer/sub-processor shall take reasonable steps to ensure that persons employed by it, and other persons at the place of work concerned, are aware of and comply with the technical and organizational measures set forth in this DPA.
Data Importer/sub-processor shall implement optimal measures to monitor access restrictions to Data Importer/sub-processor’s system administrators and to ensure that they act in accordance with instructions received. This is accomplished by various measures including:
– individual appointment of system administrators;
– adoption of optimal measures to register system administrators’ access logs to the infrastructure and keep them secure, accurate and unmodified for at least six months;
– yearly audits of system administrators’ activity to assess compliance with assigned tasks, the instructions received by the Data Importer/sub-processor and applicable laws;
– keeping an updated list with system administrators’ identification details (e.g. name, surname, function or organizational area) and tasks assigned and providing it promptly to the Data Exporter upon request.