Tencent Cloud International Data Processing Agreement (with Second-Level Resellers)
最后更新时间：2024-03-04 16:08:18
If you have (a) registered as a Second-Level Reseller under the Tencent Cloud Second-Level Reseller Terms (“Tencent Cloud Reseller Terms”) and Conditions and (b) entered into a Reseller Agreement with the Authorized Tencent Cloud Distributor (whether or not involving integration services), this Data Processing Agreement (“DPA”) applies to any processing of Personal Data in connection with such Tencent Cloud Reseller Terms. In the event of any conflict between this DPA, the Tencent Cloud Reseller, Reseller Agreement, Console Documentation and Purchase Order, this DPA shall prevail to the extent of the inconsistency. References to “Second-Level Reseller” and “Tencent” in this DPA have the same meaning as set out in the Tencent Cloud Reseller Terms.
Now it is hereby agreed as follows:
1. Definitions
1.1 Capitalised terms shall have the meaning given to them in the Tencent Cloud Reseller Terms, unless otherwise defined below:
“Personal Data”, “Special Categories of Data/Sensitive Data”, “Process/Processing”, “Controller”, “Processor”, and “Data Subject” shall have the same meaning as in the relevant Applicable Data Protection Laws.
“Applicable Data Protection Law” shall mean:
a. the General Data Protection Regulation 2016/679 (the “GDPR”);
b. the Privacy and Electronic Communications Directive 2002/58/EC;
c. the UK Data Protection Act 2018 (“DPA”), the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“UK GDPR”), and the Privacy and Electronic Communications Regulations 2003;
d. the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. as amended by the California Privacy Rights Act of 2020, Cal. Civil Code § 1798.100 et seq. (collectively, “CCPA”), the Virginia Consumer Data Protection Act (“VCDPA”), the Colorado Privacy Act (“CPA”), Connecticut Data Privacy Act (“CDPA”), Utah Consumer Privacy Act (“UCPA”), Iowa Consumer Data Protection Act (“ICDPA”), Indiana Consumer Data Protection Act (“INCDPA”), Montana Consumer Data Privacy Act (“MCDPA”), Tennessee Information Protection Act (“TIPA”), Texas Data Privacy and Security Act (“TDPSA”), Oregon Consumer Privacy Act (“OCPA”), Florida Digital Bill of Rights (“FDBR”) (collectively, “Applicable US Data Protection Law”); and
e. any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above or which otherwise relates to data protection, privacy or the use of Personal Data, in each case, as applicable and in force from time to time, and as amended, consolidated, re-enacted or replaced from time to time.
“Data Discloser” means the Party who transfers Personal Data to the other Party.
“Data Receiver” means the Party who receives Personal Data from the Data Discloser for Processing in accordance with the terms of this Agreement.
“Lawful Export Measure” means a method allowing for the lawful transfer of Personal Data from a data exporter to a data importer, as may be stipulated by Applicable Data Protection Law or a Regulator from time to time, which may include (depending upon the Applicable Data Protection Laws) model transfer terms prescribed by Applicable Data Protection Laws; or prior registration, licensing or permission from a Regulator.
“Party” means a party to this DPA.
“Partner Console” means the area designated as console in the Tencent Cloud portal at http://www.tencentcloud.com.
"Personal Data Breach” means any improper, unauthorised or unlawful access to, use of, or disclosure of, or any other compromise which affects the availability, integrity or confidentiality of Personal Data.
“Member State” means the member states of the European Union from time to time.
“Regulator” means the data protection supervisory authority which has jurisdiction over a Party’s Processing of Personal Data.
“Relevant Data Export” means:
a. a transfer of Personal Data:
i. from a Party which is subject to Applicable Data Protection Law in respect of that Personal Data;
ii. to another Party that is in a Third Country or a territory which otherwise (but for the operation of this DPA) does not offer an adequate level of protection as required by Applicable Data Protection Law; and
iii. which is not subject to any of the permitted derogations or conditions contained in Applicable Data Protection Law; and
b. the onward transfer of Personal Data pursuant to (a) to a Third Country or a territory which otherwise (but for the
operation of this DPA) does not offer an adequate level of protection as required by Applicable Data Protection Law and which is not subject to any of the permitted derogations or conditions contained in Applicable Data Protection Law.
“Security Standards” shall mean the technical and organisational security measures set out in Schedule C. “Standard Contractual Clauses” means:
a. in the case of transfers of Personal Data relating to Data Subjects in the European Economic Area (“EEA”), the standard contractual clauses for the transfer of Personal Data to data processors established in third countries set out in the Commission Decision of 4 June 2021 (C(2021) 3972), as amended and restated from time to time;
b. in relation to transfers of Personal Data from the UK, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B.1.0) issued by the UK Information Commissioner,
and in each case as amended, updated or replaced from time to time, as attached to and incorporated into this DPA to cover Personal Data transfers to Controllers or Processors as applicable established in Third Countries which do not ensure an adequate level of data protection; and
c. in each case, as amended, updated or replaced from time to time, as attached and incorporated into this DPA to cover Personal Data transfers to Controllers or Processors, as applicable, established in Third Countries which do not ensure an adequate level of data protection.
“Tencent Cloud Reseller Terms” means the Tencent Cloud Second-Level Reseller Terms and Conditions in place between Tencent and the Second-Level Reseller.
“Third Country” means (i) in relation to Personal Data transfers from the EEA, any country outside of the scope of the data protection laws of the EEA, excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time; (ii) in relation to Personal Data transfers from the UK, any country outside of the scope of the data protection laws of the UK, excluding countries approved as providing adequate protection for Personal Data by the relevant competent authority of the UK from time to time; and (iii) in relation to Personal Data transfers from any other jurisdiction, any country other than those approved as providing adequate protection for Personal Data by the relevant competent authority of such country from time to time.
1.2 References to a statutory provision include any subordinate legislation made from time to time under that provision.
1.3 References to this DPA include the Schedules.
1.4 Headings shall be ignored in construing this DPA.
1.5 If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
1.6 The words “include”, “includes” and “including”, and any succeeding words shall be construed without limitation to the generality of any preceding words or concepts.
1.7 If there is any inconsistency between the Clauses and Schedules to this DPA the Clauses shall take precedence.
SCOPE OF THIS AGREEMENT
2. General
2.1 This DPA governs the transfer of Personal Data between Tencent and Second-Level Reseller. This DPA is divided into the following sections:
a. Module A (Transfers between Controllers) sets forth the terms governing any transfer (including a Relevant Data Export) between the Parties, each acting as an independent Data Controller;
b. Module B (Transfers from a Data Controller to a Data Processor) sets forth the terms governing any transfer (including a Relevant Data Export) from Second-Level Reseller (acting as a Data Controller) to Tencent (acting as a Data Processor);
c. Module C (Transfers from a Data Processor to a Data Controller) sets forth the terms governing any transfer (including a Relevant Data Export) from Second-Level Reseller (acting as a Data Processor) to Tencent (acting as a Data Controller).
MODULE A – TRANSFERS BETWEEN DATA CONTROLLERS
3. APPLICATION OF THIS MODULE A
3.1 The Parties agree that this Module A applies in each case and only where Personal Data is transferred from Data Discloser to Data Receiver, in circumstances where each Party is acting as an independent Data Controller.
3.2 The details of the transfers covered by this Module A are specified in Schedule B which forms an integral part of this Module A.
3.3 In the case of a Relevant Data Export to a Third Country, clause 7 shall govern the terms of the transfer and clauses 4, 5 and 6 shall not apply.
4. OBLIGATIONS OF BOTH PARTIES
4.1 Each Party shall:
a. Process Personal Data fairly and lawfully;
b. ensure that Personal Data is accurate and up to date, and inform the other without undue delay if it becomes aware that any of the Personal Data is inaccurate or out of date;
c. provide reasonable assistance as necessary to the other to enable them to comply with subject access requests and to respond to any other queries or complaints from Data Subjects;
d. carry out any reasonable request from the other to amend, transfer or delete any Personal Data (to the extent applicable); and
e. notify the other promptly about any enquiries from a Regulator in relation to Personal Data and cooperate promptly and thoroughly with such Regulator, to the extent required under Applicable Data Protection Law.
5. OBLIGATIONS OF DATA DISCLOSER
5.1 The Data Discloser warrants and undertakes that:
a. Personal Data have been collected, Processed, and transferred in accordance with Applicable Data Protection Laws, as applicable to the Data Discloser;
b. it has obtained all consents, authorizations, approvals and rights and provided all notices necessary, including as required by Applicable Data Protection Law, to provide the Personal Data to the Data Receiver and permit the Data Receiver to use the Personal Data in accordance with this DPA;
c. it has used reasonable efforts to determine that the Data Receiver is able, through the implementation of appropriate technical and organisational measures, to satisfy its legal obligations under this Module A;
d. it has taken all steps required by Applicable Data Protection Law to avoid “selling” Personal Data to Data Receiver under this Module A (as defined in such laws), including transferring Personal Data at the direction of the relevant individual, or otherwise taken all steps required to comply with obligations relating to “selling” under such Applicable Data Protection Law;
e. the Data Discloser shall provide a copy of this Module A and associated Schedules to the Regulator where required.
6. OBLIGATIONS OF DATA RECEIVER
6.1 Data Receiver warrants and undertakes that:
a. it will comply with all relevant obligations of Applicable Data Protection Law, including by providing the same level of privacy protections required of controllers and businesses by Applicable Data Protection Law;
b. it will have in place appropriate technical and organisational security measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the Processing and the nature of the data to be protected including those in the Security Standards, and shall ensure that those measures continue to provide an appropriate level of security;
c. in the event of a Personal Data Breach, it shall take appropriate measures to address the Personal Data Breach, and shall (if the breach is likely to result in a risk to individuals) notify the Data Discloser and cooperate with the Data Discloser in relation to any required notifications to the Regulator and/ or to relevant Data Subjects.
d. it will have in place procedures so that any third party it authorises to have access to Personal Data, including Data Processors, will respect and maintain the confidentiality and security of Personal Data. Any person acting under the authority of the Data Receiver, including a Data Processor, shall be obligated to Process Personal Data only on instructions from the Data Receiver. This provision does not apply to persons authorised or required by law or regulation to have access to Personal Data;
e. it shall notify the Data Receiver promptly if it receives any legally binding request for disclosure of Personal Data by a public authority, or it becomes aware of any direct access to Personal Data by public authorities, unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation. The Data Receiver shall review the legality of any such request for disclosure and shall challenge the request if it considers there are reasonable grounds to do so; it shall provide the minimum amount of information permissible when responding to such a request. The Data Receiver will provide relevant information about disclosure requests to the Data Discloser, including in relation to its legality review and any challenges to the request;
f. it will inform the Data Discloser if it becomes aware of any applicable local laws that prevent it from fulfilling its obligations under this Module A;
g. it will Process Personal Data for purposes described in Schedule B (Description of Transfer), and has the legal authority to give the warranties and fulfil the undertakings set out in this Module A;
h. it shall put in place appropriate technical or organisational measures in order to retain Personal Data for no longer than necessary for the purposes for which it is processed; and
i. it will keep appropriate documentation of the Processing it carries out under this Module A, and shall make such documentation available to the relevant Regulator(s).
7. EXPORT OF PERSONAL DATA
7.1 In the case of a Relevant Data Export from the EEA, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the Standard Contractual Clauses – Module 1: Controller to Controller, set out in Schedule D-1, which incorporate the provisions of Schedule B and Schedule C, and which together will form contractual terms between that Data Discloser, who shall comply with the data exporter’s obligations set out in Schedule D-1, and the applicable Data Receiver, who shall comply with the data importer’s obligations set out in Schedule D-1, for that particular transfer of Personal Data for that particular transfer of Personal Data. In relation to any onward transfer of such Personal Data by that Data Receiver to another Data Receiver, the receiving Data Receiver shall comply with the Data Receiver obligations set out in, as applicable: (i) the Standard Contractual Clauses – Module 1: Controller to Controller set out in Schedule D-1; or (ii) the Standard Contractual Clauses – Module 2: Controller to Processor set out in Schedule E, in respect of that Personal Data.
7.2 In the case of a Relevant Data Export from the UK, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, set out in Schedule D-2, which incorporates the provisions of Schedule B and Schedule C, and which together will form contractual terms between that Data Discloser. In relation to any onward transfer of such Personal Data by the Data Receiver to another Data Receiver, the receiving Data Receiver shall comply with the obligations set out in the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses set out in Schedule D-2, in respect of that Personal Data.
7.3 In the case of a Relevant Data Export other than from the EEA or UK, the Parties shall ensure that such transfer is carried out, to the extent required by Applicable Data Protection Laws, using a Lawful Export Measure,. To the extent such Lawful Export Measure requires (a) a contract imposing appropriate safeguards on the transfer and processing of such Personal Data (which is not otherwise satisfied by this DPA); (b) a description of the Processing of Personal Data contemplated under this DPA; and (c) a description of technical and organisational measures to be implemented by the data importer, the Parties agree that the Standard Contractual Clauses, the description of processing activities set out in Schedule B, and the description of technical and organisational measures set out in Schedule C, shall apply mutatis mutandis for the benefit of such transfer, and in relation to any onward transfer of the Personal Data by that data importer to another data importer, the receiving data importer shall comply with the same data importer obligations.
MODULE B – TRANSFERS FROM DATA CONTROLLER TO DATA PROCESSOR
8. APPLICATION OF THIS MODULE B
8.1 The Parties agree that this Module B applies in each case and only where Personal Data is transferred from Second-Level Reseller (acting as a Data Controller) to Tencent (acting as a Data Processor).
8.2 The details of the transfers (as well as the Personal Data) covered by this Module B are specified in Schedule B which form an integral part of this Module B.
8.3 In the case of a Relevant Data Export to a Third Country outside of the EEA or the UK, as relevant, clause 12 shall govern the terms of the transfer and clauses 9, 10 and 11 shall not apply.
8.4 Nothing in this DPA shall relieve Second-Level Reseller or Tencent of liabilities imposed by virtue of their roles in the Processing relationship.
9. OBLIGATIONS OF SECOND-LEVEL RESELLER
9.1 Second-Level Reseller agrees and warrants that:
a. it has used reasonable efforts to determine that Tencent is able, through the implementation of appropriate technical and organisational measures, to satisfy its legal obligations under this Module B;
b. it has obtained all consents, authorizations, approvals and rights and provided all notices necessary, including as required by Applicable US Data Protection Law, to provide the Personal Data to Tencent and permit Tencent to use the Personal Data in accordance with this DPA;
c. it has disclosed Personal Data to Tencent for the limited purposes set forth in Schedule B; and
d. the Processing, including the transfer itself, of Personal Data has been and will continue to be carried out in accordance with the relevant provisions of Applicable Data Protection Law (and, where applicable, has been notified to the relevant authorities of the country in which Second-Level Reseller is established).
9.2 Second-Level Reseller warrants that it has no reason to believe that any applicable local laws, including any requirements to disclose Personal Data or measures authorising access by public authorities, prevent Tencent from fulfilling its obligations under this Module B.
10. OBLIGATIONS OF TENCENT
10.1 Tencent agrees and warrants that it will:
a. Process Personal Data only on documented instructions of Second-Level Reseller and this DPA for the limited purposes set forth in Schedule B and in compliance with Applicable US Data Protection Law;
b. not retain, use or disclose Personal Data (i) outside of the direct business relationship between Second-Level Reseller and Tencent or as otherwise permitted by Applicable Data Protection Law, or (ii) for any purpose other than for the limited purposes set forth in Schedule B;
c. not combine Personal Data received from or on behalf of Second-Level Reseller with any Personal Data that may be collected from Tencent’s separate interactions with the individual(s) to whom the Personal Data relates or from any other sources, except to perform a business purpose or as otherwise permitted by Applicable Data Protection Law;
d. ensure that persons authorised to Process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
e. take all technical and organisational security measures required by Applicable Data Protection Law relating to data security, and shall ensure that those measures continue to provide an appropriate level of security;
f. taking into account the nature of the Processing, assist Second-Level Reseller by implementing appropriate technical and organisational measures, insofar as this is practicable, for the fulfilment of Second-Level Reseller’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Applicable Data Protection Law;
g. notify (as applicable) and assist Second-Level Reseller in ensuring compliance with data security, Personal Data Breach, data protection impact assessments, and engaging in other consultations, pursuant to Applicable Data Protection Law, taking into account the nature of Processing and the information available to Tencent;
h. inform Second-Level Reseller if it becomes aware that any of Personal Data is inaccurate or out of date, and cooperate with Second-Level Reseller to erase or rectify the relevant Personal Data;
i. notify Second-Level Reseller promptly if Tencent makes a determination that it can no longer meet its obligations under Applicable US Data Protection Law;
j. permit Second-Level Reseller to take reasonable and appropriate steps to help ensure that Tencent uses Personal Data in a manner consistent with Second-Level Reseller’s obligations under Applicable US Data Protection Law and stop and remediate any unauthorized use of Personal Data;
k. notify Second-Level Reseller promptly if it receives any legally binding request for disclosure of Personal Data by a public authority, or it becomes aware of any direct access to Personal Data by public authorities, unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation. Tencent shall review the legality of any such request for disclosure and shall challenge the request if it considers there are reasonable grounds to do so; it shall provide the minimum amount of information permissible when responding to such a request. Tencent will provide relevant information about disclosure requests to Second-Level Reseller, including in relation to its legality review and any challenges to the request;
l. inform Second-Level Reseller if it becomes aware of any applicable local laws that prevent it from fulfilling its obligations under this Module B; and
m.keep appropriate documentation of the Processing it carries out under this Module B, and make available to Second-Level Reseller (and any relevant Regulator) information sufficient to demonstrate compliance with Applicable Data Protection Law and allow for and contribute to audits, including inspections, conducted by Second-Level Reseller.
11. SUB-CONTRACTING
11.1 Tencent may authorize any sub-processor to Process the Personal Data on its behalf provided that, where (and to the extent) required by Applicable Data Protection Laws, Tencent enters into a written agreement with the sub- processor containing terms which are substantially the same as those contained in this DPA. Second-Level Reseller hereby grants Tencent general written authorisation to engage sub-processors listed at https://www.tencentcloud.com/services/thirdParties. Tencent shall, to the extent required by Applicable Data Protection Laws, inform Second-Level Reseller of any intended changes concerning the addition or replacement of the sub- processors. In such a case, Second-Level Reseller will have fourteen (14) days from the date of receipt of the notice to approve or reject the change. In the event of no response from Second-Level Reseller, the sub-processor will be deemed accepted. If Second-Level Reseller rejects the replacement sub-processor, Tencent may terminate the DPA with immediate effect on written notice to Second-Level Reseller. Tencent shall remain fully responsible to Second-Level Reseller for the performance of any sub-processor’s obligations under its contract with the Second-Level Reseller.
12. EXPORT OF PERSONAL DATA
12.1 In the case of a Relevant Data Export from the EEA, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the Standard Contractual Clauses – Module 2: Controller to Processor set out in Schedule E, which incorporate the provisions of Schedule B and Schedule C, and which together will form contractual terms between Second-Level Reseller and Tencent for that particular transfer of Personal Data.
12.2 In the case of a Relevant Data Export from the UK, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, set out in Schedule D-2, which incorporates the provisions of Schedule B and Schedule C, and which together will form contractual terms between Second-Level Reseller and Tencent for that particular transfer of Personal Data.
12.3 In relation to any onward transfer of the Personal Data by Tencent to another party, Tencent shall comply with the relevant obligations set out in, as applicable: (i) the Standard Contractual Clauses – Module 2: Controller to Processor set out in Schedule E; or (ii) the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, set out in Schedule D-2.
12.4 In the case of a Relevant Data Export other than from the EEA or UK, the Parties shall ensure that such transfer is carried out, to the extent required by Applicable Data Protection Laws, using a Lawful Export Measure. To the extent such Lawful Export Measure requires (a) a contract imposing appropriate safeguards on the transfer and processing of such Personal Data (which is not otherwise satisfied by this DPA); (b) a description of the Processing of Personal Data contemplated under this DPA; and (c) a description of technical and organisational measures to be implemented by the data importer, the Parties agree that the Standard Contractual Clauses, the description of processing activities set out in Schedule B, and the description of technical and organisational measures set out in Schedule C, shall apply mutatis mutandis for the benefit of such transfer, and in relation to any onward transfer of the Personal Data by that data importer to another person, the other person shall comply with the same importer obligations.
MODULE C – TRANSFERS FROM A DATA PROCESSOR TO A DATA CONTROLLER
13. APPLICATION OF THIS MODULE C
13.1 The Parties agree that this Module C applies in each case and only where Personal Data is transferred from Second-Level Reseller (acting as a Data Processor) to Tencent (acting as a Data Controller).
13.2 The details of the transfers (as well as Personal Data) covered by this Module C are specified in Schedule B which form an integral part of this Module C.
13.3 In the case of a Relevant Data Export to a Third Country outside of the EEA or the UK, clause 15 shall govern the terms of the transfer and clause 14 shall not apply.
14. OBLIGATIONS OF SECOND-LEVEL RESELLER
14.1 Second-Level Reseller shall comply with the terms of clause 10 of Module B, and references to “Tencent” shall be read as a reference to “Second-Level Reseller”, and references to “Second-Level Reseller” shall be read as references to “Tencent”, for such purposes, in relation to any such Processing.
14.2 Before Processing Personal Data, Second-Level Reseller shall implement, and ensure that its authorised personnel comply with, appropriate technical and organisational measures to ensure a level of security appropriate to the risk, as well as ensuring that those measures continue to provide an appropriate level of security, taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of the Processing as set out in Schedule C, or otherwise agreed and documented between Tencent and Second-Level Reseller from time to time, and shall continue to comply with them during the term of this DPA. Such measures shall include, as appropriate to the risk:
a. the pseudonymisation and encryption of Personal Data;
b. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
c. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
d. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
14.3 In the event that Second-Level Reseller directly receives a request from a Data Subject regarding Data Subject’s Personal Data, or for the rectification or erasure of such Personal Data, or any other request or query from a Data Subject relating to its own Personal Data (including Data Subjects’ exercising rights under Applicable Data Protection Laws, such as rights of objection, restriction of processing, data portability or the right not to be subject to automated decision making) (a “Data Subject Request”), Second-Level Reseller will:
a. notify Tencent immediately of the Data Subject Request (without responding to that Data Subject Request, unless it has been otherwise authorised by Tencent to do so);
b. provide details of the Data Subject Request (and any other relevant information Tencent may reasonably request) to Tencent within 3 business days of receipt of the Data Subject Request; and
c. provide such assistance to Tencent as Tencent may require for the purposes of responding to the Data Subject Request and to enable Tencent to comply with all obligations which arise as a result thereof.
14.4 In the event there is, or Second-Level Reseller reasonably believes that there is, any Personal Data Breach in respect of Personal Data which is Processed by Second-Level Reseller under or in connection with this DPA, then upon becoming aware of such Personal Data Breach, Second-Level Reseller shall:
a. immediately notify Tencent in writing of all known details of the Personal Data Breach relating to the Personal Data, including:
i. a description of the nature of the Personal Data Breach including, where possible, the categories and approximate number of Data Subjects and records concerned;
ii. the name and contact details of the data protection officer or other contact point where more information can be obtained;
iii. a description of the likely consequences of the Personal Data Breach; and
iv. a description of the measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects;
b. provide Tencent with regular status updates on any Personal Data Breach (including actions taken to resolve the incident) and share additional information related to the breach as soon as more details become available;
c. mitigate any harmful effect that is known to Second-Level Reseller of a use or disclosure of the Personal Data in violation of this
DPA or in connection with a Personal Data Breach;
d. assist Tencent in remediating or mitigating any potential damage from a Personal Data Breach.
e. within 4 weeks of closure of the incident, provide Tencent a written report describing the Personal Data Breach, the root cause analysis, actions taken by Second-Level Reseller during its response and Second-Level Reseller's plans for future actions to prevent a similar Personal Data Breach from occurring;
f. not disclose to third parties (including Regulators) any information about a Personal Data Breach involving the Personal Data without prior written and express permission from Tencent for such disclosure; and
g. assist Tencent with notifying the Personal Data Breach to any Regulator or the Data Subject in accordance with, and in the timeframe required by, the Applicable Data Protection Laws.
14.5 Second-Level Reseller shall not subcontract to any third party any of its obligations to Process Personal Data under this Module C unless all of the following provisions of this clause have first been complied with:
a. Second-Level Reseller has supplied to Tencent such information as that Tencent may require to ascertain that such subcontractor has the ability to comply with Second-Level Reseller’s obligations set out in this DPA and with Tencent’s instructions;
b. Second-Level Reseller has obtained the prior written consent of Tencent; and
c. the proposed subcontractor has entered into a contract with Second-Level Reseller which requires the subcontractor to take adequate technical and organisational measures to safeguard the security and integrity of the relevant Personal Data and only Process data in accordance with the documented instructions of Tencent (including as set out in such contract with the proposed subcontractor), and which contains obligations on the relevant subcontractor which are no less onerous than the obligations on the Second-Level Reseller in, and which is no less protective of the Personal Data than, the terms of this DPA. The Second-Level Reseller shall provide, at Tencent’s request, a copy of such subcontractor contract, and subsequent amendments, to Tencent.
14.6 In the event that Tencent consents to subcontracting the Processing of Personal Data, Second-Level Reseller remains liable for the Processing under the terms of this DPA. The Second-Level Reseller shall notify Tencent of any failure by a subcontractor to fulfil its obligations under the relevant subcontractor contract.
14.7 Second-Level Reseller will not, without the consent of Tencent, either:
a. Process Personal Data in any Third Country; or
b. permit any third party including its subcontractors to Process Personal Data in any Third Country.
14.8 Second-Level Reseller shall permit Tencent at any time upon seven (7) days’ notice, to be given in writing, to have access to the appropriate part of Second-Level Reseller’s premises, systems, equipment, and other materials and data Processing facilities to enable Tencent (or its designated representative) to inspect or audit the same for the purposes of monitoring compliance with Second-Level Reseller’s obligations under this DPA. Such inspection shall:
a. be carried out by Tencent or an inspection body composed of independent members and in possession of the required professional qualifications and bound by a duty of confidentiality, selected by Tencent, where applicable, in agreement with the Regulator; and
b. not relieve Second-Level Reseller of any of its obligations under this DPA.
15. EXPORT OF PERSONAL DATA
15.1 In the case of a Relevant Data Export from the EEA, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the Standard Contractual Clauses – Module 4 : Processor to Controller set out in Schedule F, which incorporate the provisions of Schedule B, and which together will form contractual terms between Tencent and Second-Level Reseller for that particular transfer of Personal Data.
15.2 In the case of a Relevant Data Export from the UK, the Relevant Data Export shall be carried out in accordance with, and will be subject to, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, set out in Schedule D-2, which incorporates the provisions of Schedule B and Schedule C, and which together will form contractual terms between Second-Level Reseller and Tencent for that particular transfer of Personal Data.
15.3 In the case of a Relevant Data Export other than from the EEA or UK, the Parties shall ensure that such transfer is carried out, to the extent required by Applicable Data Protection Laws, using a Lawful Export Measure. To the extent such Lawful Export Measure requires (a) a contract imposing appropriate safeguards on the transfer and processing of such Personal Data (which is not otherwise satisfied by this DPA); (b) a description of the Processing of Personal Data contemplated under this DPA; and (c) a description of technical and organisational measures to be implemented by the data importer, the Parties agree that the Standard Contractual Clauses, the description of processing activities set out in Schedule B, and the description of technical and organisational measures set out in Schedule C, shall apply mutatis mutandis for the benefit of such transfer, and in relation to any onward transfer of the Personal Data by that data importer to another person, the other person shall comply with the same importer obligations.
MISCELLANEOUS (APPLICABLE TO ALL MODULES)
16. COOPERATION WITH REGULATORS
16.1 The Parties agree that they shall and, where applicable, shall procure that their representatives shall cooperate, on request, with any relevant Regulator in the performance of its tasks pursuant to Applicable Data Protection Law.
17. RESOLUTION OF DISPUTES WITH DATA SUBJECTS OR A REGULATOR
In respect of any action or omission under this DPA:
a. in the event of a dispute or claim brought by a Data Subject or a Regulator concerning the Processing of Personal Data against Tencent, Second-Level Reseller will inform Tencent about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion;
b. Second-Level Reseller agrees to respond to any generally available non-binding mediation procedure initiated by a Data Subject or by a Regulator. If they do participate in the proceedings, Second-Level Reseller may elect to do so remotely (such as by telephone or other electronic means); and
c. each Party shall abide by a decision, as applicable, of a competent court of Tencent’s country of establishment; of a competent court of the relevant Data Subject’s country of habitual residence; or of the Regulator which is final and against which no further appeal is possible.
18. LIABILITY
18.1 Without prejudice to any other rights or remedies that Tencent may have, Second-Level Reseller hereby acknowledges and agrees that a person with rights under this DPA may be irreparably harmed by any breach of its terms and that damages alone may not be an adequate remedy. Accordingly, a person bringing a claim under this DPA shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this DPA.
18.2 Second-Level Reseller agrees that it will (in addition to, and without affecting, any other rights or remedies that Tencent may have whether under statute, common law or otherwise) indemnify, defend and hold harmless Tencent, its affiliates, and their respective employees, officers and directors (the “Tencent Parties”) on demand from and against all claims, liabilities, costs, expenses, loss or damage incurred by a Tencent Party (including consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and other professional costs and expenses) arising directly or indirectly from a breach of Applicable Data Protection Law or this DPA by Second-Level Reseller or enforcement of any rights under it.
19. TERMINATION
19.1 Termination of this DPA shall be governed by the applicable provisions in the relevant provisions in the Tencent Cloud Reseller Terms.
19.2 Upon termination of this DPA:
a. each Party shall, except to the extent it acts as a Data Controller of such Personal Data, at the other Party’s option, either forthwith:
i. return all of the Personal Data and any copies thereof which it is Processing or has Processed upon behalf of that Party. The return of the Personal Data shall result in the full deletion of the Personal Data existent in the IT
equipment and systems used by the Party; or
ii. destroy all of the Personal Data and any copies thereof which it has Processed on behalf of that Party promptly and in any case within 14 days of being requested to do so by that Party. The Party shall certify the deletion of such data in writing to the other Party; and
iii. cease Processing Personal Data on behalf of the other Party under this DPA.
20. MISCELLANEOUS
Applicable clauses in relation to Assignment, Variation, Further Assurance, Invalidity, Waiver and Notices of the applicable Tencent Cloud Reseller Terms shall apply mutatis mutandis to this DPA.
21. SERVICE-SPECIFIC TERMS
The Parties agree that certain Additional Terms may apply to certain services provided by or on behalf of Tencent from time to time in connection with the Tencent Cloud Reseller Terms, and that such Additional Terms shall be deemed to be incorporated into this DPA.
22. ENTIRE AGREEMENT
These terms are the final and complete expression of all agreements between Second-Level Reseller and Tencent regarding Processing of Personal Data and supersede all prior oral and written agreements regarding these matter. In the event of any conflict between this DPA or the Tencent Cloud Reseller Terms, this DPA shall prevail to the extent of the inconsistency solely to the extent such inconsistency relates to the Processing of Personal Data or any Applicable Data Protection Law.
23. COUNTERPARTS
This DPA may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument.
24. GOVERNING LAW
24.1 Subject to clause 24.2, this DPA shall be governed by Singapore law.
24.2 The law governing Module A (Transfers between Data Controllers), 2 (Transfers from a Data Controller to a Data Processor), in respect of each transfer, be the law of the country in which the Data Discloser is established. The law governing Section 3 (Transfers from a Processor to a Controller) of this DPA shall, in respect of each transfer, be the law of the country in which the Data Receiver is established.
24.3 Any dispute shall be referred to, and finally resolved by, arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force when the notice of arbitration is submitted. The tribunal shall consist of one arbitrator. The seat of arbitration shall be Singapore and the language to be used in the arbitral proceedings shall be English.
SCHEDULE A: LIST OF PARTIES
Module A (Transfers between Controllers)
Data Exporter and Importer(s) - Tencent:
Tencent Cloud Europe B.V., a Dutch registered company located at Buitenveldertselaan 1-5, 1082 VA, Amsterdam, the Netherlands., if Second-Level Reseller is located in European Economic Area, UK and Switzerland
Tencent Cloud LLC, a Delaware corporation registered company located at Claremont 2747 Park Blvd, Palo Alto,
CA 94306., if Second-Level Reseller is located in North America
Tencent Korea Yuhan Hoesa, 152, Taeheran-ro, Gangnam-gu (Gangnam Finance Center, Yeoksam-dong), Seoul, South Korea, if Second-Level Reseller is located in South Korea
Aceville Pte Ltd, a Singapore-registered company located at 30 Raffles Place, #12-01, Oxley @ Raffles, Singapore 048622., if Second-Level Reseller is located in the rest of the world except People’s Republic of China
Contact: cloudlegalnotices@tencent.com
Activities relevant to the data transferred under these Clauses: Cloud service provider Role
(controller/processor): Controller
Data Exporter and Importer(s) – Second-Level Reseller:
Name: The relevant entity that entered into the Tencent Cloud Reseller Terms with Tencent
Address: The address provided to Tencent when signing up to act as a reseller of Tencent cloud services. Contact person’s name, position and contact details: The details provided to Tencent when signing up to act as a reseller of Tencent cloud services.
Activities relevant to the data transferred under these Clauses: Reseller of Tencent Role (controller/processor): Controller
Module B (Transfers from a Data Controller (Second-Level Reseller) to a Data Processor (Tencent))
Data exporter(s) –Second-Level Reseller:
Name: The relevant Party that entered into the Tencent Cloud Reseller Terms with Tencent, who acting as Data Controller transfers Personal Data to Tencent.
Address: The address provided to Tencent when signing up to act as a reseller of Tencent cloud services.
Contact person’s name, position and contact details: The details provided to Tencent when signing up to act as a reseller of Tencent cloud services.
Activities relevant to the data transferred under these Clauses: Second-Level Reseller of Tencent
Role (controller/processor): Controller
Data importer(s) –Tencent:
Tencent Cloud Europe B.V., a Dutch registered company located at Buitenveldertselaan 1-5, 1082 VA, Amsterdam, the Netherlands., if Second-Level Reseller is located in European Economic Area, UK and Switzerland
Tencent Cloud LLC, a Delaware corporation registered company located at Claremont 2747 Park Blvd, Palo Alto,
CA 94306., if Second-Level Reseller is located in North America
Tencent Korea Yuhan Hoesa, 152, Taeheran-ro, Gangnam-gu (Gangnam Finance Center, Yeoksam-dong), Seoul, South Korea, if Second-Level Reseller is located in South Korea
Aceville Pte Ltd, a Singapore-registered company located at 30 Raffles Place, #12-01, Oxley @ Raffles, Singapore 048622., if Second-Level Reseller is located in the rest of the world except People’s Republic of China
Contact: cloudlegalnotices@tencent.com
Activities relevant to the data transferred under these Clauses: Cloud service provider Role (controller/processor): Processor
Module C (Transfers from a Data Processor (Second-Level Reseller) to a Data Controller (Tencent))
Data exporter(s) –Second-Level Reseller:
Name: The relevant Party that entered into the Tencent Cloud Reseller Terms with Tencent.
Address: The address provided to Tencent when signing up to act as a second-level reseller of Tencent cloud services.
Contact person’s name, position and contact details: The details provided to Tencent when signing up to act as a reseller of Tencent cloud services.
Activities relevant to the data transferred under these Clauses: Second-Level Reseller of Tencent
Role (controller/processor): Processor
Data importer(s) –Tencent:
Tencent Cloud Europe B.V., a Dutch registered company located at Buitenveldertselaan 1-5, 1082 VA, Amsterdam, the Netherlands., if Second-Level Reseller is located in European Economic Area, UK and Switzerland
Tencent Cloud LLC, a Delaware corporation registered company located at Claremont 2747 Park Blvd, Palo Alto, CA 94306., if Second-Level Reseller is located in North America
Tencent Korea Yuhan Hoesa, 152, Taeheran-ro, Gangnam-gu (Gangnam Finance Center, Yeoksam-dong), Seoul, South Korea, if Second-Level Reseller is located in South Korea
Aceville Pte Ltd, a Singapore-registered company located at 30 Raffles Place, #12-01, Oxley @ Raffles, Singapore 048622., if Second-Level Reseller is located in the rest of the world except People’s Republic of China
Activities relevant to the data transferred under these Clauses: Cloud service provider Role (controller/processor): Controller
SCHEDULE B: DESCRIPTION OF TRANSFERS
Categories of data subjects whose personal data is transferred
Individuals employed by or representing the Second-Level Reseller
End Users(s), End Customers
Categoriesofpersonaldatatransferred
Individuals employed by or representing the Second-Level Reseller: name, job title, mobile phone, email address
End Users(s), End Customers: Name, Email address, address, country, business registration number (and photo), job title, mobile number, payment details (bank name, account name, bank account, swift code), invoice information (Payer Account ID, Owner Account ID, Operator Account ID), and any other personal data made available by or on behalf of Second-Level Reseller/Second-Level Reseller’s End User(s), or otherwise accessible directly or indirectly via the Partner Console.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No sensitive personal data transferred
Thefrequencyofthetransfer(e.g.whetherthedataistransferredonaone-offorcontinuousbasis).
For the duration of the DPA
Nature of the processing
Second-Level Reseller will act as a reseller of Tencent cloud services for certain End Users. Second-Level Reseller shall administer and manage Resell activities relating to its End Users and Second-Level Resellers through the functions and tools provided through Partner Console or via other processes authorized or designated by Tencent and this will involve processing personal data.
Purpose(s)ofthedatatransferandfurtherprocessing
To facilitate the Reselling of Tencent Services by the Second-Level Reseller, including (without limitation and in each case to the extent the relevant services, features, support or functions are provided):
making available or accessible, directly or indirectly, Personal Data via the Partner Console
provision of integrated / value-added services by the Second-Level Reseller to its customers (if applicable)
customer account creation via email invite sent by Second-Level Reseller on the Tencent Cloud console
placement of orders / Purchase Orders for Tencent Services
fulfilment of orders / Purchase Orders (i.e. performance of Tencent Services)
access to online training materials and support from Tencent
access to dedicated online documents and support from Tencent
assigning dedicated solution architect(s) for support
participation in Tencent’s marketing activities (details subject to Tencent’s approval)
joint case study opportunities (details subject to Tencent’s agreement)
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The retention period will follow the data retention policy as set out in the Privacy Policy on the Tencent website.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
N/A
Identify the competent supervisory authority/ies in accordance with Clause 13 of Schedules D, E and F
The Netherlands
SCHEDULE C: TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Where applicable this Schedule C also forms part of the Standard Contractual Clauses.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
1. Data security. The data importer shall design and implement the following measures to protect customer's data against unauthorized access:
standards for data categorisation and classification;
a set of authentication and access control capabilities at the physical, network, system and application levels; and
a mechanism for detecting big data-based abnormal behaviour.
2. Network security. The data importer shall implement stringent rules on internal network isolation to achieve access control and border protection for internal networks (including office networks, development networks, testing networks and production networks) by way of physical and logical isolation.
3. Physical and environmental security. Stringent infrastructure and environment access controls shall be implemented for data centers based on relevant regional security requirements. An access control matrix is established, based on the types of data center personnel and their respective access privileges, to ensure effective management and control of access and operations by data center personnel.
4. Incident management. The data importer shall operate active and real-time service monitoring, combined with a rapid response and handling mechanism, that enables prompt detection and handling of security incidents.
5. Compliance with standards. The data importer shall comply with the standards listed in Tencent’s Compliance Center page, and as updated from time to time.
SCHEDULE D-1: STANDARD CONTRACTUAL CLAUSES
MODULE 1: CONTROLLER TO CONTROLLER TRANSFER
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 - Clause 8.5 (e) and Clause 8.9(b);
iii. Clause 12 - Clause 12(a) and (d);
iv. Clause 13;
v. Clause 15.1(c), (d) and (e);
vi. Clause 16(e);
vii. Clause 18 - Clause 18(a) and (b).
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: 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.
8.1 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. It may only process the personal data for another purpose:
i. where it has obtained the data subject’s prior consent;
ii. where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
iii. where necessary in order to protect the vital interests of the data subject or of another natural person.
8.2 Transparency
a. In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
i. of its identity and contact details;
ii. of the categories of personal data processed;
iii. of the right to obtain a copy of these Clauses;
iv. where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
b. Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
c. On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.
d. Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
a. Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
b. If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
c. The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in
relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.
8.5 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 personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they 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 subject. 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.
b. The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
c. The data importer shall ensure that persons authorised to process the personal data have committed themselves to
confidentiality or are under an appropriate statutory obligation of confidentiality.
d. 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 personal data breach, including measures to mitigate its possible adverse effects.
e. In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
f. In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
g. The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 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 or offences (hereinafter “sensitive data”), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
The data importer shall not disclose the personal data 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”) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
i. it 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 of Regulation (EU) 2016/679
with respect to the processing in question;
iii. the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
iv. it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
v. it is necessary in order to protect the vital interests of the data subject or of another natural person; or
vi. where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
a. Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
b. The data importer shall make such documentation available to the competent supervisory authority on request.
Clause 9: Use of sub-processors Clause 10: Data subject rights
a. The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
b. In particular, upon request by the data subject the data importer shall, free of charge:
i. provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
ii. rectify inaccurate or incomplete data concerning the data subject;
iii. erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
c. Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
d. The data importer shall not make a decision based solely on the automated processing of the personal data
transferred (hereinafter “automated decision”), which would produce legal effects concerning the data subject or similarly significantly affect him / her, unless with the explicit consent of the data subject or if authorised to do so under the law of the country of destination, provided that such law lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
i. inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
ii. implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
e. Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
f. The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
g. If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
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.
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
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. Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
c. 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.
d. The Parties agree that if one Party is held liable under paragraph (c), 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.
e. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
Clause 13: Supervision
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.
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
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).
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. 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 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
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.
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.).
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.
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 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. 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. 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
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 The Netherlands (specify Member State).
Clause 18: Choice of forum and jurisdiction
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 The Netherlands (specify Member State).
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 TO SCHEDULE D-1 (SCCS MODULE 1)
ANNEX I
A. LIST OF PARTIES
See Schedule A to the DPA
B. DESCRIPTION OF TRANSFER
See Schedule B to the DPA
C. COMPETENT SUPERVISORY AUTHORITY
See Schedule B to the DPA
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
See Schedule C to the DPA
SCHEDULE D-2:INTERNATIONAL DATA TRANSFER ADDENDUM TO THE EU COMMISSION STANDARD CONTRACTUAL CLAUSES
This Addendum has been issued by the UK Information Commissioner’s Office for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
PART 1: TABLES
TABLE 1: PARTIES
Start date | See effective date of the DPA | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
Parties’ details | See Schedule A of the DPA | |
Key Contact | See Schedule A of the DPA | |
TABLE 2: SELECTED SCCS, MODULES AND SELECTED CLAUSES
AddendumEU SCCs | The Approved EU SCCs, including the Appendix Information, set out in Schedule D-1, Schedule E or Schedule F to the DPA, as applicable |
TABLE 3: APPENDIX INFORMATION
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Annex 1A: List of Parties: See Schedule A to the DPA | |
Annex 1B: Description of Transfer: See Schedule B to the DPA | |
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: See Schedule C to the DPA | |
Annex III: List of Sub processors (Modules 2 and 3 only): N/A | |
TABLE 4: ENDING THIS ADDENDUM WHEN THE APPROVED ADDENDUM CHANGES
Ending this Addendum when the Approved Addendum changes | Which Partiesmay end this Addendum as set out in Section 19: Neither Party |
Part 2: Mandatory Clauses
Entering into this Addendum
1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum
3 . Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
Addendum | This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs. |
AddendumEU SCCs | The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information. |
Appendix Information | As set out in Table 3. |
Appropriate Safeguards | The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR. |
Approved Addendum | The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022. |
ApprovedEU SCCs | The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021. |
ICO | The Information Commissioner. |
Restricted Transfer | A transfer which is covered by Chapter V of the UK GDPR. |
UK | The United Kingdom of Great Britain and Northern Ireland. |
UK Data Protection Laws | All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
UK GDPR | As defined in section 3 of the Data Protection Act 2018. |
4 .This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
5 .If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted
under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6.If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
7.If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
8 .Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
9 .Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
10 .Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs
12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
a. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
b. Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
c. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
13.Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
14.No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
15.The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
a. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
b. In Clause 2, delete the words:
“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”;
c. Clause 6 (Description of the transfer(s)) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
d. Clause 8.7(i) of Module A is replaced with:
“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
e. Clause 8.8(i) of Modules 2 and 3 is replaced with:
“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
f. References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
g. References to Regulation (EU) 2018/1725 are removed;
h. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
i. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
j. Clause 13(a) and Part C of Annex I are not used;
k. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
l. In Clause 16(e), subsection (i) is replaced with:
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
m. Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”;
n. Clause 18 is replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
o. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to this Addendum
16.The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
17.If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18.From time to time, the ICO may issue a revised Approved Addendum which:
a. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
b. reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
19.If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:
a. its direct costs of performing its obligations under the Addendum; and/or
b. its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.
SCHEDULE E: STANDARD CONTRACTUAL CLAUSES
MODULE 2: CONTROLLER TO PROCESSOR TRANSFER
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 - Clause 8.1(b), 8.9(a), (c), (d) and (e);
iii. Clause 9 - Clause 9(a), (c), (d) and (e);
iv. Clause 12 - Clause 12(a), (d) and (f);
v. Clause 13;
vi. Clause 15.1(c), (d) and (e);
vii. Clause 16(e);
viii. Clause 18 - Clause 18(a) and (b).
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: 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.
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
a. The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least twenty business days’ in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub- processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
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
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.
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
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
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
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).
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. 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 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
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.
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.).
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.
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 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. 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. 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
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 The Netherlands.
Clause 18: Choice of forum and jurisdiction
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 The Netherlands (specify Member State).
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 TO SCHEDULE E (SCCS MODULE B)
ANNEX I
A.LIST OF PARTIES
See Schedule A to the DPA
B. DESCRIPTION OF TRANSFER
See Schedule B to the DPA
C. COMPETENT SUPERVISORY AUTHORITY
See Schedule B to the DPA
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
See Schedule C to the DPA
SCHEDULE F:STANDARD CONTRACTUAL CLAUSES
MODULE 4: PROCESSOR TO CONTROLLER TRANSFER
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 - Clause 8.1 (b) and Clause 8.3(b);
iii. Clause 15.1(c), (d) and (e);
iv. Clause 16(e);
v. 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: 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.
8.1 Instructions
a. The data exporter shall process the personal data only on documented instructions from the data importer acting as its controller.
b. The data exporter shall immediately inform the data importer if it is unable to follow those instructions, including if such instructions infringe Regulation (EU) 2016/679 or other Union or Member State data protection law.
c. The data importer shall refrain from any action that would prevent the data exporter from fulfilling its obligations
under Regulation (EU) 2016/679, including in the context of sub-processing or as regards cooperation with competent supervisory authorities.
d. After the end of the provision of the processing services, the data exporter shall, at the choice of the data importer, delete all personal data processed on behalf of the data importer and certify to the data importer that it has done so, or return to the data importer all personal data processed on its behalf and delete existing copies.
8.2 Security of processing
a. The Parties shall implement appropriate technical and organisational measures to ensure the security of the data, including during transmission, and protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature of the personal data, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects, and in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
b. The data exporter shall assist the data importer in ensuring appropriate security of the data in accordance with paragraph (a). In case of a personal data breach concerning the personal data processed by the data exporter under these Clauses, the data exporter shall notify the data importer without undue delay after becoming aware of it and assist the data importer in addressing the breach.
c. The data exporter shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.3 Documentation and compliance
a. The Parties shall be able to demonstrate compliance with these Clauses.
b. The data exporter shall make available to the data importer all information necessary to demonstrate compliance with its obligations under these Clauses and allow for and contribute to audits.
Clause 9: Use of sub-processors Clause 10: Data subject rights
The Parties shall assist each other in responding to enquiries and requests made by data subjects under the local law applicable to the data importer or, for data processing by the data exporter in the EU, under Regulation (EU) 2016/679.
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.
Clause 12: Liability
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. Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party 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 under Regulation (EU) 2016/679.
c. 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.
d. The Parties agree that if one Party is held liable under paragraph (c), 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.
e. The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
Clause 13: Supervision
Section III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14: Local laws and practices affecting compliance with the Clauses
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).
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. 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 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
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.
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.).
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.
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 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. 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
These Clauses shall be governed by the law of a country allowing for third-party beneficiary rights. The Parties agree that this shall be the law of The Netherlands (specify country).
Clause 18: Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of The Netherlands (specifycountry).
APPENDIX TO SCHEDULE F (SCCS MODULE 4)
ANNEX I
A. LIST OF PARTIES
See Schedule A to the DPA
B. DESCRIPTION OF TRANSFER
See Schedule B to the DPA
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