Data Processing Agreement
PERSONAL DATA PROCESSING AGREEMENT FOR CENSIA CLOUD SERVICES
1.1 Purpose and Application. This document (“DPA”) is incorporated into the Agreement and forms part of a written (including in electronic form) contract between Censia and Customer. This DPA applies to Personal Data processed by Censia and its Subprocessors in connection with its provision of the Cloud Service. This DPA does not apply to non-production environments of the Cloud Service if such environments are made available by Censia, and Customer shall not store Personal Data in such environments.
1.2 Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.
1.3 GDPR. Censia and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers, Processors, and Subprocessors by the General Data Protection Regulation 2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA.
1.4 Governance. Censia acts as either a Processor or Subprocessor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use Censia as a Processor or Subprocessor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Cloud Service. Where Censia informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.
2. SECURITY OF PROCESSING
2.1 Appropriate Technical and Organizational Measures. Censia has implemented and will apply the technical and organizational security measures set forth in Appendix 2. Customer has reviewed such measures and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
2.2 Changes. Censia applies the technical and organizational measures set forth in Appendix 2 to Censia’s entire customer base hosted out of the same Data Center and receiving the same Cloud Service. Censia may change the measures set out in Appendix 2 at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
3. CENSIA OBLIGATIONS
3.1 Instructions from Customer. Censia will process Personal Data only in accordance with documented instructions from Customer or, if Censia is a Subprocessor, the appropriate Processor of the Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Cloud Service then constitutes further instructions. Censia will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible, and do not require changes to the Cloud Service. If any of the before-mentioned exceptions apply, or Censia otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Censia will immediately notify Customer (email permitted).
3.2 Processing on Legal Requirement. Censia may also process Personal Data where required to do so by applicable law. In such a case, Censia shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
3.3 Personnel. To process Personal Data, Censia and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. Censia and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
3.4 Cooperation. At Customer’s request, Censia will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding Censia’s processing of Personal Data or any Personal Data Breach. Censia shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request. Censia shall provide functionality that supports Customer’s ability to correct or remove Personal Data from the Cloud Service, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, Censia will correct or remove any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
3.5 Personal Data Breach Notification. Censia will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. Censia may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by Censia.
3.6 Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, Censia will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties and may be at additional cost.
4. DATA EXPORT AND DELETION
4.1 Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer, upon its request to Censia, can access its Personal Data at any time. Censia will provide such data in a common, readable format. Customer’s request may be subject to technical limitations, in which case Censia and Customer will find a reasonable method to allow Customer access to Personal Data.
4.2 Deletion. Before the Subscription Term expires, Customer may request is Personal Data be provided to Customer as a final export of Personal Data from the Cloud Service (which shall constitute a “return” of Personal Data). At the end of the Subscription Term, Customer hereby instructs Censia to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable time period in line with Data Protection Law (not to exceed six months) unless applicable law requires retention.
5. CERTIFICATIONS AND AUDITS
5.1 Customer Audit. Customer or its independent third party auditor reasonably acceptable to Censia (which shall not include any third party auditors who are either a competitor of Censia or not suitably qualified or independent) may audit Censia’s control environment and security practices relevant to Personal Data processed by Censia only if:
- Censia has not provided sufficient evidence of its compliance with the technical and organizational measures that protect the production systems of the Cloud Service through providing either: (i) a certification as to compliance with ISO 27001 or other standards
(scope as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third-party auditor or Censia;
- A Personal Data Breach has occurred;
- An audit is formally requested by Customer’s data protection authority; or
- Mandatory Data Protection Law provides Customer with a direct audit right and provided that Customer shall only audit once in any twelve-month period unless mandatory Data Protection Law requires more frequent audits.
5.2 Other Controller Audit. Any other Controller may audit Censia’s control environment and security practices relevant to Personal Data processed by Censia in line with Section 5.1 only if any of the cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by Censia on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
5.3 Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to Censia.
5.4 Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by Censia of this DPA, then Censia shall bear its own expenses of an audit. If an audit determines that Censia has breached its obligations under the DPA, Censia will promptly remedy the breach at its own cost.
6.1 Permitted Use. Censia is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that:
- Censia shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal Data. Censia shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;
- Censia will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
- Censia’s list of Subprocessors in place on the effective date of the Agreement is published by Censia or Censia will make it available to Customer upon request, including the name, address and role of each Subprocessor Censia uses to provide the Cloud Service.
6.2 New Subprocessors. Censia’s use of Subprocessors is at its discretion, provided that:
- Censia will inform Customer in advance (by email or by posting on the support portal available through Censia Support) of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and
- Customer may object to such changes as set out in Section 6.3.
6.3 Objections to New Subprocessors.
- If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer may terminate the Agreement (limited to the Cloud Service for which the new Subprocessor is intended to be used) on written notice to Censia. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of Censia’s notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty-day period, Customer is deemed to have accepted the new Subprocessor.
- Within the thirty day period from the date of Censia’s notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect Censia’s right to use the new Subprocessor(s) after the thirty day period.
- Any termination under this Section 6.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
6.4 Emergency Replacement. Censia may replace a Subprocessor without advance notice where the reason for the change is outside of Censia’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, Censia will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.
7. INTERNATIONAL PROCESSING
7.1 Conditions for International Processing. Censia shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
7.2 Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses, then:
- The parties shall first rely on Censia’s Privacy Shield certification to ensure an adequate transfer; and
- the parties have entered enter into the Standard Contractual Clauses as a supplemental transfer mechanism in case Censia’s Privacy Shield certification is deemed inactive or inadequate.
7.3 Relation of the Standard Contractual Clauses to the Agreement and Privacy Shield. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses or Censia’s Privacy Shield certification. In the event of a conflict between Censia’s Privacy Shield certification and the Standard Contractual Clauses, Privacy Shield shall apply and be the exclusive method of transfer. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.
7.4 Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the law of the country in which the relevant Controller is incorporated.
8. DOCUMENTATION; RECORDS OF PROCESSING
Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party in order to enable the other party to comply with any obligations relating to maintaining records of processing.
9. ACCESS AND LOCATION
9.1 EU Access. If Customer desires, Censia and Customer will enter into good faith negotiations regarding Censia possibly using only European Subprocessors to provide support requiring access to Personal Data in the Cloud Service and Censia not exporting Personal Data outside of the EEA or Switzerland unless expressly authorized by Customer in writing (e-mail permitted) on a case by case basis; or as excluded under Section 9.3.
9.2 Data Center Location. Upon the effective date of the Agreement, the Data Centers used to host Personal Data in the Cloud Service are located in the United States.
9.3 Exclusions. The following Personal Data is not subject to 9.1 and 9.2:
- Contact details of the sender of a support ticket; and
- Any other Personal Data submitted by Customer when filing a support ticket. Customer may choose not to transmit Personal Data when filing a support ticket. If this data is necessary for the incident management process, Customer may choose to anonymize that Personal Data before any transmission of the incident message to Censia.
Capitalized terms not defined herein will have the meanings given to them in the Agreement.
10.1 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to Censia be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
10.2 “Data Center” means the location where the production instance of the Cloud Service is hosted.
10.2 “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement, including the GDPR where applicable.
10.4 “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
10.5 “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
10.6 “European Subprocessor” means a Subprocessor that is physically processing Personal Data in the EEA or Switzerland.
10.7 “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by Customer or its Authorized Users into or derived from their use of the Cloud Service, or (ii) supplied to or accessed by Censia or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
10.8 “Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
10.9 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.
10.10 “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply). The Standard Contractual Clauses current as of the effective date of the Agreement are attached hereto as Appendix 3.
10.11 “Subprocessor” means third parties engaged by Censia in connection with the Cloud Service and which process Personal Data in accordance with this DPA. In some cases Censia may be a Subprocessor of another entity, such as SAP.
Appendix 1 to the DPA and, if applicable, the Standard Contractual Clauses
The Data Exporter is the Customer who subscribed to a Cloud Service that allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also use the Cloud Service, these other Controllers are also Data Exporters.
Censia and its Subprocessors provide the Cloud Service are the data importers.
Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: job applicants, potential job applicants, employees, contractors, business partners or other individuals having Personal Data stored in the Cloud Service.
The transferred Personal Data concerns the following categories of data:
Customer determines the categories of data per Cloud Service subscribed. Customer can configure the data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, email address, time zone, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service such as work history, education history, and employment application data.
Special Data Categories (if appropriate)
The transferred Personal Data concerns the following special categories of data: As set out in the
Agreement (including the Order Form) if any.
Processing Operations / Purposes
The transferred Personal Data is subject to the following basic processing activities, which shall occur as long as the Agreement is in effect:
- use of Personal Data to set up, operate, monitor and provide the Cloud Service (including Operational and Technical Support)
- provision of the services as described in the agreement;
- communication to Authorized Users
- upload any fixes or upgrades to the Cloud Service
- back up of Personal Data in certain scenarios
- computer processing of Personal Data, including data transmission, data retrieval, data access
- network access to allow Personal Data transfer
- execution of instructions of Customer in accordance with the Agreement.
Appendix 2 to the DPA and, if applicable, the Standard Contractual Clauses – Technical and Organizational Measures
1. TECHNICAL AND ORGANIZATIONAL MEASURES
The following sections define Censia’s current technical and organizational measures. Censia may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data. Censia has implemented reasonable measures with a goal of ensuring the following when possible:
1.1 Physical Access Control. Unauthorized persons are prevented from gaining physical access to premises, buildings or rooms where data processing systems that process and/or use Personal Data are located.
1.2 System Access Control. Data processing systems used to provide the Cloud Service must be prevented from being used without authorization.
1.3 Data Access Control. Persons entitled to use data processing systems gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.
1.4 Data Transmission Control. Except as necessary for the provision of the Cloud Services in accordance with the Agreement, Personal Data must not be read, copied, modified or removed without authorization during transfer. Where data carriers are physically transported, adequate measures are implemented at Censia to provide the agreed-upon service levels (for example, encryption and lead-lined containers).
1.5 Data Input Control. It will be possible to retrospectively examine and establish whether and by whom Personal Data have been entered, modified or removed from Censia data processing systems. 1.6 Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a customer’s behalf) is processed solely in accordance with the Agreement and related instructions of the customer.
1.7 Availability Control. Personal Data will be protected against accidental or unauthorized destruction or loss.
1.8 Data Separation Control. Personal Data collected for different purposes can be processed separately.
1.9 Data Integrity Control. Personal Data will remain intact, complete and current during processing activities.
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)1
For the purposes of Article 26(2) of Directive 95/46/EC (or, after 25 May 2018, Article 44 et seq. of Regulation 2016/79) for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Customer also on behalf of the other Controllers
(in the Clauses hereinafter referred to as the ‘data exporter’)
(in the Clauses hereinafter referred to as the ‘data importer’)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- ‘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;
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
1 Pursuant to Commission Decision of 5 February 2010 (2010/87/EU)
- ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, 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.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7,Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, 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;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
- any accidental or unauthorized access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, 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;
- that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub-processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- 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.
Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.