Data Processing
This Data Processing Addendum (the “Addendum”) forms part of the Software Development Kit Licence Agreement (the “Principal Agreement”) between: (i) SAYTV; and (ii) Licensee.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
The parties have executed this Addendum by signing the Principal Agreement to which this Addendum relates and in which this Addendum is incorporated. The parties may vary this Addendum from time to time by executing a standalone supplementary addendum varying any or all of the terms of this Addendum and that variation will take effect on and with effect from the date on which it is executed by the parties thereto.
1. Definitions
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to any other Data Protection Laws; (c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and (d) all guidance, guidelines, codes of practice and codes of conduct issued by any relevant supervisory authority relating to such Applicable Laws (in each case whether or not legally binding).
1.1.2 “Customer” means Licensee
1.1.3 “Customer Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.4 “Customer Group Member” means Customer or any Customer Affiliate;
1.1.5 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Principal Agreement;
1.1.6 “Contracted Processor” means SAYTV or any Subprocessor;
1.1.7 “Controller-to-Processor Clauses” means the standard contractual clauses between controllers and processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
1.1.8 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.9 “EEA” means the European Economic Area;
1.1.10 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.11 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.12 “Processor-to-Processor Clauses” means the standard contractual clauses between processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021
1.1.13 “Restricted Transfer” means:
(a) a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or
(b) an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 6.5.3 or 12 below;
1.1.14 “Services” means the services and other activities to be supplied to or carried out by or on behalf of SAYTV for Customer Group Members pursuant to the Principal Agreement;
1.1.15 “Standard Contractual Clauses” means (i) the Controller-to-Processor Clauses, or (ii) the Processor-to-Processor Clauses, as applicable;
1.1.16 “Subprocessor” means any person (including any third party and any SAYTV Affiliate, but excluding an employee of SAYTV or any of its sub-contractors) appointed by or on behalf of SAYTV or any SAYTV Affiliate to Process Personal Data on behalf of any Customer Group Member in connection with the Principal Agreement;
1.1.17 “SAYTV Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with SAYTV, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise; and
1.1.18 “SAYTV Security Standards” means the security standards set out in Annex 2.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms
shall be construed accordingly.
2. Authority
SAYTV warrants and represents that, before any SAYTV Affiliate Processes any Customer Personal Data on behalf of any Customer Group Member, SAYTV’s entry into this Addendum as agent for and on behalf of that SAYTV Affiliate will have been duly and effectively authorised (or subsequently ratified) by that SAYTV Affiliate.
3. Processing of Customer Personal Data
3.1 SAYTV and each SAYTV Affiliate shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
3.1.2 not Process Customer Personal Data other than on the relevant Customer Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case SAYTV or the relevant SAYTV Affiliate shall to the extent permitted by Applicable Laws inform the relevant Customer Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Customer Group Member:
3.2.1 instructs SAYTV and each SAYTV Affiliate (and authorises SAYTV and each SAYTV Affiliate to instruct each Subprocessor) to:
(a) Process Customer Personal Data; and
(b) in particular, transfer Customer Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Customer Affiliate.
3.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to SAYTV from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
4. SAYTV and SAYTV Affiliate Personnel
SAYTV and each SAYTV Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal
Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, SAYTV and each SAYTV Affiliate has implemented and will maintain the technical and organisational measures for the Services as described in the SAYTV Security Standards and this section. In particular, SAYTV has implemented and will maintain the following technical and organisational measures:
5.1.1 security of the SAYTV’s network as set out in Section 1.1 of the SAYTV Security Standards;
5.1.2 physical security of the facilities as set out in Section 1.2 of the SAYTV Security Standards;
5.1.3 measures to control access rights for SAYTV employees and contractors to the SAYTV’s network as set out in Section 1.1 of the SAYTV Security Standards; and
5.1.4 processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by SAYTV as described in Section 2 of the SAYTV Security Standards.
5.2 In assessing the appropriate level of security, SAYTV and each SAYTV Affiliate take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6. Subprocessing
6.1 Customer provides general authorisation to SAYTV’s use of sub-processors to provide processing activities on Customer Data on behalf of Customer (“Subprocessors”) in accordance with this Section. Square 1 is the only Subprocessor that is currently engaged by SAYTV. At least 30 days before SAYTV engages a new Subprocessor, SAYTV will provide Customer with a mechanism to obtain notice of that update. To object to a Subprocessor, Customer can: (i) terminate the Principal Agreement pursuant to its terms; or (ii) cease using the Service for which SAYTV has engaged the relevant Subprocessor.
6.2 Where SAYTV authorises a Subprocessor as described in Section 6.1:
6.2.1 SAYTV will restrict the Sub-processor’s access to Customer Data only to what is necessary to provide or maintain the Services in accordance with the Documentation, and SAYTV will prohibit the Sub-processor from accessing Customer Data for any other purpose;
6.2.2 SAYTV will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor performs the same data processing services provided by SAYTV under this Addendum, SAYTV will impose on the Sub-processor the same contractual obligations that SAYTV has under this Addendum; and
6.2.3 SAYTV will remain responsible for its compliance with the obligations of this Addendum and for any acts or omissions of the Sub-processor that cause SAYTV to breach any of SAYTV’s obligations under this Addendum.
6.3 SAYTV and each SAYTV Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of SAYTV.
7. Data Subject Rights
7.1 SAYTV makes available as standard features of the Services the ability for Customer to fulfil its obligations to respond to requests to exercise Data Subject rights under Data Protection Law through downloads of information from SAYTV’s systems and otherwise. Customer acknowledges those technical measures as appropriate in light of the nature and purpose of the processing of accounting information carried out by SAYTV for Customer.
7.2 SAYTV shall:
7.2.1 promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or the relevant Customer Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case SAYTV shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach
8.1 SAYTV shall notify Customer without undue delay upon SAYTV or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow each Customer Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 SAYTV shall co-operate with Customer and each Customer Group Member and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
SAYTV and each SAYTV Affiliate shall at Customer’s expense provide reasonable assistance to each Customer Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of any Customer Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Customer Personal Data
10.1 Subject to sections 10.2 and 10.3 SAYTV and each SAYTV Affiliate shall promptly and in any event within 90 days of the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data.
10.2 Subject to section 10.3, Customer may in its absolute discretion by written notice to SAYTV within 30 days of the Cessation Date require SAYTV and each SAYTV Affiliate at Customer’s expense to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to SAYTV; and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor. SAYTV and each SAYTV Affiliate shall comply with any such written request within 60 days of the Cessation Date.
10.3 Each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that SAYTV and each SAYTV Affiliate shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
11. Audit rights
11.1 SAYTV uses external auditors to verify the adequacy of its security measures, including the security of the physical data centres from which SAYTV provides the Services. This audit: (a) will be performed at least once every three years; (b) will be performed according to ISO 27001 standards or such other alternative standards that are substantially equivalent to ISO 27001; (c) will be performed by independent third party security professionals at SAYTV’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be SAYTV’s Confidential Information.
11.2 At Customer’s written request, and provided that the parties have an applicable NDA in place, SAYTV will provide Customer with a copy of the most recent Report so that Customer can reasonably verify SAYTV’s compliance with its obligations under this Addendum.
11.3 If Customer chooses to conduct any audit, including any inspection, it has the right to request or mandate on its own behalf, and on behalf of its controllers when Customer is acting as a processor, under the GDPR or the Standard Contractual Clauses, by instructing SAYTV to carry out the audit described in Section 11.1. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending SAYTV written notice as provided for in the Agreement. If SAYTV declines to follow any reasonable instruction requested by Customer regarding audits or inspections, Customer is entitled to terminate the Principal Agreement in accordance with its terms.
12. Restricted Transfers
12.1 Customer can specify the location(s) where Customer Data will be processed within the SAYTV Network (each a “Region”), including Regions in the EEA, UK and USA. Once Customer has made its choice, SAYTV will not transfer Customer Data from Customer’s selected Region(s) except as necessary to provide the Services initiated by Customer, or as necessary to comply with the law or binding order of a governmental body.
12.2 Subject to Section 12.3, the Standard Contractual Clauses will only apply to Restricted Transfers.
12.3 When Customer is acting as a controller, the Controller-to-Processor Clauses will apply to all Restricted Transfers.
12.4 When Customer is acting as a processor, the Processor-to-Processor Clauses will apply to all Restricted Transfers. Taking into account the nature of the processing, Customer agrees that it is unlikely that SAYTV will know the identity of Customer’s controllers because SAYTV has no direct relationship with Customer’s controllers and therefore, Customer will fulfil SAYTV’s obligations to Customer’s controllers under the Processor-to-Processor Clauses.
13. General Terms
13.1 Governing law and jurisdiction: Without prejudice to sections 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
13.2 Changes in Law:
13.2.1 Customer may:
(a) by at least 30 calendar days’ written notice to SAYTV from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
(b) propose any other variations to this Addendum which Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.2.2 If Customer gives notice under section 13.2.1(a):
(a) SAYTV and each SAYTV Affiliate shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and
(b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by SAYTV to protect the Contracted Processors against additional risks associated with the variations made under section 13.2.1(a) and/or 13.2.1(b)
13.2.3 If Customer gives notice under section 13.2.1, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s notice as soon as is reasonably practicable.
13.2.4 Neither Customer nor SAYTV shall require the consent or approval of any Customer Affiliate or SAYTV Affiliate to amend this Addendum pursuant to this section 13 or otherwise.
13.3 Severance: Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter & duration: The subject matter and duration of the Processing of the Customer Personal Data are set out in the Principal Agreement and this Addendum.
Nature: The nature of the Processing of Customer Personal Data is the provision of Operating Infrastructure and Services in connection with the provision of chat app functionality within varies services offered by Customer.
Purpose: The purpose of the Processing of Customer Personal Data is for the SAYTV to provide the Services to the Customer at the instance of the Customer. Nature of Processing | Description |
Access to data on behalf of the Data Controller | [Supplier accesses personal data on behalf of the Licensee for the provision of operating services.] |
Collection of Personal Data on behalf of the Data Controller | [Supplier collects personal data on behalf of [ ] to facilitate the identification of users.] |
Storing Personal Data on behalf of the Data Controller | [Supplier stores personal data on behalf of [ ] to facilitate the identification of users.] |
Deleting Personal Data | [ ] |
Transferring to third parties | [ ] |
Analysis of Personal Data | [ ] |
Other (please specify the specific purpose of the processing) | [ ] |
Types of Customer Personal Data: The types of Customer Personal Data to be Processed include all Customer Personal Data uploaded by the Customer to the Operating Infrastructure. Data Category | Details of Data |
End-user, Consumer or Subscriber Data | [Username or ID,mobile phone number, in-app user activity] |
IT usage data | [UserID, roles, permissions, log-in times, computer name, IP address, etc.] |
Contract data | [Purchased products, services, date of purchase agreement, purchase price, extras, warranties, etc.] |
Location data | [GPS, wireless positioning/tracking, movement profile, WLAN hotspot tracking/positioning, etc.] |
Consumption data | [Telecommunication data, CDR, login habit, device used, duration and frequency of telecommunication services use] |
Categories of data subjects: The categories of Data Subject to whom the Customer Personal Data relates may include the Customer’s employees, contractors, suppliers, customers and other counterparties. Group of data subjects | Description | Examples |
Employees | Licensee Employee or Employee of a Licensee Affiliate | Employee, trainee, applicant, former employees |
Customers | Any person who has a (customer) business relationship (with Licensee) | |
Other business partners | Any natural person or legal entity that has a business relationship (with Licensee), except for customers | Suppliers, importers, or service partners themselves; intermediaries, freelancers, agents etc. |
Rights & Obligations: The obligations and rights of Customer and Customer Affiliates are set out in the Principal Agreement and this Addendum.
Sub-processing: Licensee agrees to the commissioning of the following Sub-processors: No. | Sub-processor (company name, address, country contact) | Country of Processing | Categories of personal data and of data subjects | Nature & purpose of the processing by a Subcontractor |
SAYTV shall inform Licensee of any additional sub-processors in accordance with section 6 of the Addendum.
ANNEX 2: SAYTV SECURITY STANDARDS
Capitalised terms not otherwise defined in this document have the meanings assigned to them in the Addendum or in the Principal Agreement.
1. Information Security Program: SAYTV will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorised access to the SAYTV Network, and (c) minimise security risks, including through risk assessment and regular testing. SAYTV will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security. The SAYTV Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. SAYTV will maintain access controls and policies to manage what access is allowed to the SAYTV Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. SAYTV will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
1.2.1 Physical Access Controls. Physical components of the SAYTV Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorised entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (for example, card access systems, etc.) or validation by human security personnel (for example, contract or in-house security guard service, receptionist, etc.). Employees and certain contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors and any other contractors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor or contractor is at any of the Facilities, and are continually escorted by authorised employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. SAYTV provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of SAYTV or its affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. SAYTV also maintains electronic intrusion detection systems designed to detect unauthorised access to the Facilities, including monitoring points of vulnerability (for example, primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.
2. Continued Evaluation. SAYTV will conduct periodic reviews of the security of the SAYTV
Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. SAYTV will continually evaluate the security of its SAYTV Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
ANNEX 3: STANDARD CONTRACTUAL CLAUSES
The following Standard Contractual Clauses shall be applied where, having regards to the circumstances of cross-border data transfer between the parties under the Agreement and in the absence of an adequacy decision by the European Commission pursuant to Article 45(3) of Regulation (EU) 2016/679, the parties wish to ensure the continuity of adequate protection where personal data is transferred.
Both parties agree, that where any sub-processing occurs, the processor shall duly execute the SCCs (Module Three) with any such sub-processor.
For the purpose of this Agreement, Module 2 of the SCCs shall be applicable between the parties.
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
MODULE TWO: Transfer controller to processor
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed
by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and
in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
MODULE TWO: Transfer controller to processor
(a) SPECIFIC PRIOR AUTHORISATION The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at sixty (60) days prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.
MODULE TWO: Transfer controller to processor
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
MODULE TWO: Transfer controller to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
MODULE TWO: Transfer controller to processor
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three: , if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
[For Module Three: The data exporter shall forward the notification to the controller.]
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority [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.
(d) [For Modules One, Two and Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of France.
Clause 18
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of France.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX OF SCC
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I OF SCC
A. LIST OF PARTIES
Data Exporters:
1. Name: [ ]
Address: [ ]
Contact person’s name: [ ]
Title: [ ]
Email: [ ]
Activities relevant to the data transferred under these Clauses: collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, erasure or destruction of personal data.
Signature and date:
Role : Data Controller
Data Importer
Name:
Address:
Contact person’s name:
Title:
Email:
Telephone:
Registered Address:
Activities relevant to the data transferred under these Clauses: collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, erasure or destruction of personal data
Signature and date:
Role: Data Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
See Annex I of the Data Protection Addendum
Categories of personal data transferred
See Annex I of the Data Protection Addendum
Sensitive data transferred
N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis)
Data will be processed and transferred for the duration of the Term under the Agreement or applicable project under a SOW (and any renewal or extension thereof) on a continuous basis.
Nature and Purpose of the Processing
The access, collection, storage, analysis and other processing of personal data further to the the provision of services between the parties as provided in the Master Services Agreement and accompanying SOWs, the purpose of which is to provide a mobile endpoint security solution for Licensee’s consumer and business customers. A more detailed understanding of the nature and purpose is set out in the aforementioned Agreement and SOWs, and Section 1 & 2 of Annex I of the Data Protection Schedule.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Data will be retained no longer than necessary for the purpose for which it was processed for the duration of the Agreement, unless a longer period is required to comply with any applicable laws. Retention periods may vary depending on i) purpose for which the data was collected and used, which may differ depending on the nature of data and the activities involved, ii) the length of the data subject’s relationship with the controller or iii) whether there are legal obligations to which either the controller or processor are subject.
See Annex 1 of the Data Protection Addendum
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
See Annex 1 of the Data Protection Addendum
C. COMPETENT SUPERVISORY AUTHORITY
Data Protection Commission, 21 Fitzwilliam Square South, Dublin 2 D02 RD28, Ireland