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DATA PROCESSING AGREEMENT
This DPA is entered into between the Controller and the Processor and is incorporated into and
governed by the terms of the Agreement.
1. Definitions
Any capitalised term not defined in this DPA shall have the meaning given to it in the Agreement.
“Affiliates” means any entity that directly or indirectly controls, is controlled by,
or is under common control of a party. “Control,” for purposes of
this definition, means direct or indirect ownership or control of more
than 50% of the voting interests of a party;
“Agreement” means the agreement between the Controller and the Processor for
the provision of the Services;
“Controller” means the Customer;
“Data Protection Law” means all laws and regulations, including laws and regulations of the
European Union, the European Economic Area, their member states and
the United Kingdom any amendments, replacements or renewals
thereof, applicable to the processing of Personal Data, including where
applicable the Data Protection Act 2018, the GDPR and/or any
subsequent amendment or replacement or supplementary legislation;
“Data Subject” shall have the same meaning as in Data Protection Law;
“DPA” means this data processing agreement together with Exhibits A, B
and C;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and
of the Council of 27 April 2016;
“Personal Data” shall have the same meaning as in Data Protection Law;
“Processor” means the Company;
“Security Policy” means the Processor’s security document as updated from time to
time, and accessible via www.digitalpigeon.com/securitypolicy
otherwise made reasonably available by the Processor;
“Standard Contractual Clauses”
means the EU model clauses for personal
data transfer from controllers to processors
c2010-593 - Decision 2010/87EU, set out in
Exhibit C of this DPA;
“Sub-Processor” means any person or entity engaged by the Processor or its
Affiliate to process Personal Data in the provision of the Services to
the Controller.
2. Purpose
2.1 The Processor has agreed to provide the Services to the Controller in accordance with the
terms of the Agreement. In providing the Services, the Processor shall process Customer Data
on behalf of the Controller. Customer Data may include Personal Data. The Processor will
process and protect such Personal Data in accordance with the terms of this DPA.
3. Scope
3.1 In providing the Services to the Controller pursuant to the terms of the Agreement, the
Processor shall process Personal Data only to the extent necessary to provide the Services in
accordance with both the terms of the Agreement and the Controller’s instructions
documented in the Agreement and this DPA.
4. Processor Obligations
4.1 The Processor may collect, process or use Personal Data only within the scope of this DPA.
4.2 The Processor confirms that it shall process Personal Data on behalf of the Controller and
shall take steps to ensure that any natural person acting under the authority of the Processor
who has access to Personal Data shall only process the Personal Data on the documented
instructions of the Controller.
4.3 The Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the
instructions regarding the processing of Personal Data provided by the Controller, breach any
Data Protection Law.
4.4 The Processor shall ensure that all employees, agents, officers and contractors involved in the
handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and
are contractually bound to keep the Personal Data confidential; (ii) have received appropriate
training on their responsibilities as a data processor; and (iii) are bound by the terms of this
DPA.
4.5 The Processor shall implement appropriate technical and organizational procedures to protect
Personal Data, taking into account the state of the art, the costs of implementation and the
nature, scope, context and purposes of processing as well as the risk of varying likelihood and
severity for the rights and freedoms of natural persons.
4.6 The Processor shall implement appropriate technical and organizational measures to ensure a
level of security appropriate to the risk, including inter alia as appropriate: (i) the
pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going
confidentiality, integrity, availability and resilience of processing systems and services; (iii) the
ability to restore the availability and access to Personal Data in a timely manner in the event of
a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating
the effectiveness of technical and organizational measures for ensuring the security of the
processing. In accessing the appropriate level of security, account shall be taken in particular
of the risks that are presented by processing, in particular from accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data
transmitted, stored or otherwise processed.
4.7 The technical and organizational measures detailed in Exhibit B shall be at all times adhered
to as a minimum security standard. The Controller accepts and agrees that the technical and
organizational measures are subject to development and review and that the Processor may
use alternative suitable measures to those detailed in the attachments to this DPA.
4.8 The Controller acknowledges and agrees that, in the course of providing the Services to the
Controller, it may be necessary for the Processor to access the Personal Data to respond to
any technical problems or Controller queries and to ensure the proper working of the Services.
All such access by the Processor will be limited to those purposes.
4.9 Where Personal Data relating to an EU or UK Data Subject is transferred outside of the EEA it
shall be processed in accordance with the provisions of the Standard Contractual Clauses,
unless the processing takes place: (i) in a third country or territory recognised by the EU
Commission to have an adequate level of protection; or (ii) by an organization located in a
country which has other legally recognised appropriate safeguards in place.
4.10 Taking into account the nature of the processing and the information available to the
Processor, the Processor shall assist the Controller by having in place appropriate technical
and organizational measures, insofar as this is possible, for the fulfilment of the Controller's
obligation to respond to requests for exercising the Data Subject's rights and the Controller’s
compliance with the Controller’s data protection obligations in respect of the processing of
Personal Data.
4.11 The Processor confirms that it and/or its Affiliate(s) have appointed a data protection officer
where such appointment is required by Data Protection Law. The appointed data protection
officer may be reached at privacy@digitalpigeon.com.
5. Controller Obligations
5.1 The Controller represents and warrants that it shall comply with the terms of the Agreement,
this DPA and Data Protection Law.
5.2 The Controller represents and warrants that it has obtained any and all necessary permissions
and authorizations necessary to permit the Processor, its Affiliates and Sub-Processors, to
execute their rights or perform their obligations under this DPA.
5.3 The Controller is responsible for compliance with all Data Protection Law, including
requirements with regards to the transfer of Personal Data under this DPA and the Agreement.
5.4 All Affiliates of the Controller who use the Services shall comply with the obligations of the
Controller set out in this DPA.
5.5 The Controller shall implement appropriate technical and organizational procedures to protect
Personal Data, taking into account the state of the art, the costs of implementation and the
nature, scope, context and purposes of processing as well as the risk of varying likelihood and
severity for the rights and freedoms of natural persons. The Controller shall implement
appropriate technical and organizational measures to ensure a level of security appropriate to
the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of
Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and
resilience of processing systems and services; (iii) the ability to restore the availability and
access to Personal Data in a timely manner in the event of a physical or technical incident; (iv)
a process for regularly testing, assessing and evaluating the effectiveness of technical and
organizational measures for ensuring the security of the processing. In accessing the
appropriate level of security account shall be taken in particular of the risks that are presented
by processing, in particular from accidental or unlawful destruction, loss, alteration,
unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise
processed.
5.6 The Controller shall take steps to ensure that any natural person acting under the authority of
the Controller who has access to Personal Data only processes the Personal Data on the
documented instructions of the Controller.
5.7 The Controller may require correction, deletion, blocking and/or making available the Personal
Data during or after termination of the Agreement. The Controller acknowledges and agrees
that the Processor will process the request to the extent it is lawful and will reasonably fulfil
such request in accordance with its standard operational procedures to the extent possible.
5.8 The Controller acknowledges and agrees that some instructions from the Controller, including
destruction or return of data, assisting with audits, inspections or DPIAs by the Processor, may
result in additional fees. In such case, the Processor will notify the Controller of its fees for
providing such assistance in advance, unless otherwise agreed.
6. Sub-Processors
6.1 The Controller acknowledges and agrees that: (i) Affiliates of the Processor may be used as
Sub-processors; and (ii) the Processor and its Affiliates respectively may engage Sub-
processors in connection with the provision of the Services.
6.2 All Sub-processors who process Personal Data in the provision of the Services to the
Controller shall comply with the obligations of the Processor set out in this DPA.
6.3 The Controller agrees that the Sub-processors may transfer Personal Data for the purpose of
providing the Services to the Controller in accordance with the Agreement to countries outside
the European Economic Area (EEA). The Processor confirms that such Sub- processors: (i)
are located in a third country or territory recognised by the EU Commission to have an
adequate level of protection; or (ii) have entered into Standard Contractual Clauses with the
Processor; or (iii) have other legally recognised appropriate safeguards in place.
6.4 The Controller authorizes the Processor to use the Sub-processors already engaged by the
Processor as at the date of the Agreement and the Processor shall make available to the
Controller the current list of Sub-processors which shall include the identities of Sub-
processors and their country of location. During the term of this DPA, the Processor shall
provide the Controller with prior notification, via email, of any changes to the list of Sub-
processor(s) who may process Personal Data before authorising any new or replacement
Sub-processor(s) to process Personal Data in connection with the provision of the Services.
6.5 The Controller may object to the use of a new or replacement Sub-processor, by notifying the
Processor promptly in writing within ten (10) Business Days after receipt of the Processor’s
notice. If the Controller objects to a new or replacement Sub-processor, the Controller may
terminate the Agreement with respect to those Services which cannot be provided by the
Processor without the use of the new or replacement Sub-processor. The Processor will
refund the Controller any prepaid fees covering the remainder of the Term of the Agreement
following the effective date of termination with respect to such terminated Services.
6.6 All Sub-processors who process Personal Data shall comply with the obligations of the
Processor set out in this DPA. The Processor shall prior to the relevant Sub-processor
carrying out any processing activities in respect of the Personal Data; (i) appoint each Sub-
processor under a written contract containing materially the same obligations to those of the
Processor in this DPA enforceable by the Processor; and (ii) ensure each such Sub-processor
complies with all such obligations.
7. Liability
7.1 The limitations on liability set out in the Agreement apply to all claims made pursuant to any
breach of the terms of this DPA.
7.2 The parties agree that the Processor shall be liable for any breaches of this DPA caused by
the acts and omissions or negligence of its Sub-processors to the same extent the Processor
would be liable if performing the services of each Sub-processor directly under the terms of
the DPA, subject to any limitations on liability set out in the terms of the Agreement.
7.3 The parties agree that the Controller shall be liable for any breaches of this DPA caused by
the acts and omissions or negligence of its Affiliates as if such acts, omissions or negligence
had been committed by the Controller itself.
7.4 The Controller shall not be entitled to recover more than once in respect of the same loss.
8. Audit
8.1 The Processor shall make available to the Controller all information reasonably necessary to
demonstrate compliance with its processing obligations and allow for and contribute to audits
and inspections.
8.2 Any audit conducted under this DPA shall consist of examination of the most recent reports,
certificates and/or extracts prepared by an independent auditor bound by confidentiality
provisions similar to those set out in the Agreement. In the event that provision of the same is
not deemed sufficient in the reasonable opinion of the Controller, the Controller may conduct a
more extensive audit which will be: (i) at the Controller’s expense; (ii) limited in scope to
matters specific to the Controller and agreed in advance; (iii) carried out during USA business
hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable
material issue has arisen; and (iv) conducted in a way which does not interfere with the
Processor’s day-to-day business.
8.3 This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to
clarify the procedures in respect of any audit undertaken pursuant thereto.
9. Data Breach
9.1 The Processor shall notify the Controller without undue delay after becoming aware of (and in
any event within 72 hours of discovering) any accidental or unlawful destruction, loss,
alteration or unauthorised disclosure or access to any Personal Data (“Data Breach”).
9.2 The Processor will take all commercially reasonable measures to secure the Personal Data, to
limit the effects of any Data Breach, and to assist the Controller in meeting the Controller’s
obligations under applicable law.
10. Compliance, Cooperation and Response
10.1 In the event that the Processor receives a request from a Data Subject in relation to Personal
Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by
law. The Controller shall reimburse the Processor for all costs incurred resulting from
providing reasonable assistance in dealing with a Data Subject request. In the event that the
Processor is legally required to respond to the Data Subject, the Controller will fully cooperate
with the Processor as applicable.
10.2 The Processor will notify the Controller promptly of any request or complaint regarding the
processing of Personal Data, which adversely impacts the Controller, unless such notification
is not permitted under applicable law or a relevant court order.
10.3 The Processor may make copies of and/or retain Personal Data in compliance with any legal
or regulatory requirement including, but not limited to, retention requirements.
10.4 The Processor shall reasonably assist the Controller in meeting the Controller’s obligation to
carry out data protection impact assessments (DPIAs), taking into account the nature of
processing and the information available to the Processor.
10.5 The parties acknowledge that it is the duty of the Controller to notify the Processor within a
reasonable time, of any changes to applicable data protection laws, codes or regulations
which may affect the contractual duties of the Processor. The Processor shall respond within a
reasonable timeframe in respect of any changes that need to be made to the terms of this
DPA or to the technical and organizational measures to maintain compliance. If the parties
agree that amendments are required, but the Processor is unable to accommodate the
necessary changes, the Controller may terminate the part or parts of the Services which give
rise to the non-compliance. To the extent that other parts of the Services provided are not
affected by such changes, the provision of those Services shall remain unaffected.
10.6 The Controller and the Processor and, where applicable, their representatives, shall
cooperate, on request, with a supervisory data protection authority in the performance of their
respective obligations under this DPA and Data Protection Law.
11. Term and Termination
11.1 The Processor will only process Personal Data for the term of the DPA. The term of this DPA
shall coincide with the commencement of the Agreement and this DPA shall terminate
automatically together with termination or expiry of the Agreement.
11.2 The Processor shall at the choice of the Controller, upon receipt of a written request received
within 30 days the end of the provision of the Services relating to processing, delete or return
Personal Data to the Controller. The Processor shall in any event delete all copies of Personal
Data in its systems within 60 days of the effective date of termination of the Agreement unless:
(i) applicable law or regulations require storage of the Personal Data after termination; or (ii)
partial Personal Data of the Controller is stored in backups, then such Personal Data shall be
deleted from backups up 1 year after the effective date of termination of the Agreement.
12. General
12.1 This DPA sets out the entire understanding of the parties with regards to the subject matter
herein.
12.2 Should a provision of this DPA be invalid or become invalid then the legal effect of the other
provisions shall be unaffected. A valid provision is deemed to have been agreed which comes
closest to what the parties intended commercially and shall replace the invalid provision. The
same shall apply to any omissions.
12.3 Subject to any provision of the Standard Contractual Clauses to the contrary, this DPA shall
be governed by the laws of the United States of America and the State of Utah, without
reference to its conflict of laws provisions. Any cause of action arising under this DPA must be
instituted in a court of competent jurisdiction in the state of Utah, United States of America.
12.4 The parties agree that this DPA is incorporated into and governed by the terms of the
Agreement.
Exhibit A
Overview of data processing activities to be performed by the Processor
1. Controller
The Controller transfers Personal Data identified in sections 3, 4 and 5 below, as it relates to the
processing operations identified in section 6 below.
The Controller is the Customer.
2. Processor
The Processor received data identified in sections 3, 4 and 5 below, as it relates to the processing
operations identified in section 6 below.
The Processor is the Company.
3. Data Subjects
The Personal Data transferred includes but is not limited to the following categories of Data Subjects:
Employees, freelancers and contractors of the Controller. and other users added by the
Controller from time to time.
Users, Affiliates and other participants from time to time to whom the Controller has
granted the right to access the Services in accordance with the terms of the Agreement.
Clients of the Controller and individuals with whom those end users communicate with by
email and/or instant messaging.
Service providers of the Controller.
Children who are at least 16 years old.
Team Admins will be able to access details of authorised user’s information
Authorised users of a Digital Pigeon team may be able to access and control aspects of
the Controller's account including uploaded files, related information about said files,
Feedback and approvals and other authorised user’s information, contacts, usage and
device information.
Third parties. When sending, sharing or receiving files basic account information and
authorised user information may be displayed such as names, email addresses and
business or organization names and addresses. Depending on Controller configuration
related information such as usage and device details may also be displayed
Support Staff of the Processor may, with permission of the Controller access the account
in order to investigate support requests.
Other individuals to the extent identifiable in the content of emails or their attachments or
in archiving content.
4. Categories of Data
The Personal Data transferred includes but is not limited to the following categories of data:
Personal details, names, user names, passwords, email addresses of users.
Personal Data derived from the Users use of the Services such as records and business
intelligence information.
Personal Data within email and messaging content which identifies or may reasonably be
used to identify, data subjects.
Meta data including sent, to, from, date, time, subject, which may include Personal Data.
Other data added by the Controller or Users from time to time
5. Special categories of Data
No sensitive data or special categories of data are permitted to be transferred and shall not be
contained in the content of or attachments to, emails.
6. Processing operations
The Personal Data transferred will be subject to the following basic processing activities:
Personal Data will be processed to the extent necessary to provide the Services in
accordance with both the Agreement and the Controller’s instructions. The Processor
processes Personal Data only on behalf of the Controller.
Processing operations include but are not limited to: the uploading and storage of data
files provided by the Controller and its Users. These operations relate to all aspects of
Personal Data processed.
Technical support, issue diagnosis and error correction to ensure the efficient and proper
running of the systems and to identify, analyse and resolve technical issues both generally
in the provision of the Services and specifically in answer to a Controller query. This
operation may relate to all aspects of Personal Data processed but will be limited to
metadata where possible.
Virus, anti-spam and Malware checking in accordance with the Services provided. This
operation relates to all aspects of Personal Data processed.
URL scanning for the purposes of the provision of targeted threat protection and similar
service which may be provided under the Agreement. This operation relates to
attachments and links in emails and will relates to any Personal Data within those
attachments or links which could include all categories of Personal Data.
Exhibit B
Technical and Organizational Security Measures
Processor utilizes third party data centers that maintain current ISO 27001 certifications and/or and
ISO 27018. The Processor will not utilise third party data centers that do not maintain the
aforementioned certifications and/or attestations, or other substantially similar or equivalent
certifications and/or attestations.
Upon the Controller’s written request (no more than once in any 12 month period), the Processor
shall provide within a reasonable time, a copy of the most recently completed certification and/or
attestation reports (to the extent that to do so does not prejudice the overall security of the
Services) relating to the AWS hosting center that it uses. Any audit report submitted to the
Controller shall be treated as Confidential Information and subject to the confidentiality provisions of
the Agreement between the parties.
The following descriptions provide an overview of the technical and organizational security
measures implemented. It should be noted however that, in some circumstances, in order to protect
the integrity of the security measures and in the context of data security, detailed descriptions may
not be available, however additional information regarding technical and organizational measures
may be found in the Security Policy. It’s acknowledged and agreed that the Security Policy and the
technical and organizational measures described therein will be updated and amended from time to
time, at the sole discretion of the Processor. Notwithstanding the foregoing, the technical and
organizational measures will not fall short of those measures described in the Security Policy in any
material, detrimental way.
1. System Access Control
Technical and organizational measures regarding the user ID and authentication:
The aim of the system access control is to prevent unauthorised use of data processing
systems, are used for the processing of Customer Data.
Remote access to the data processing systems is only possible through the Processor’s secure VPN
tunnel. If the users first authenticate to the secure VPN tunnel, after successful authentication
authorization is executed by providing a unique user name and password to a centralised directory
service. All access attempts, successful and unsuccessful are logged and monitored.
Additional technical protections are in place using firewalls and proxy servers and state of the art
encryption technology that is applied where appropriate to meet the protective purpose based on
risk.
2. Data Access Control
Technical and organizational measures regarding the on-demand structure of the authorization
concept, data access rights and monitoring and recording of the same:
Measures regarding data access control are targeted on the basis that only such data can be
accessed for which an access authorization exists and that data cannot be read, copied,
changed or deleted in an unauthorised manner during the processing and after the saving of
such data.
Access to data necessary for the performance of the particular task is ensured within the systems
and applications by a corresponding role and authorization concept. In accordance to the “least
privilege” and "need-to-know" principles, each role has only those rights which are necessary for
the fulfilment of the task to be performed by the individual person.
To maintain data access control, state of the art encryption technology is applied to the Personal
Data itself where deemed appropriate to protect sensitive data based on risk.
3. Transmission Control
Technical and organizational measures regarding the transport, transfer, transmission, storage and
subsequent review of Personal Data on data media (manually or electronically).
Transmission control is implemented so that Personal Data cannot be read, copied, changed
or deleted without authorization, during transfer or while stored on data media, and so that it
can be monitored and determined as to which recipients a transfer of Personal Data is
intended.
The measures necessary to ensure data security during transport, transfer and transmission of
Personal Data as well as any other company or Customer Data are detailed in the Security Policy.
This standard includes a description of the protection required during the processing of data, from
the creation of such data to deletion, including the protection of such data in accordance with the
data classification level.
For the purpose of transfer control, an encryption technology is used (e.g. remote access to the
company network via two factor VPN tunnel and full disk encryption). The suitability of an encryption
technology is measured against the protective purpose.
The transfer of Personal Data to a third party (e.g. customers, sub-contractors, service providers) is
only made if a corresponding contract exists, and only for the specific purposes. If Personal Data is
transferred to companies located outside the EEA, the Processor provides that an adequate level of
data protection exists at the target location or organization in accordance with the European Union's
data protection requirements, e.g. by employing contracts based on the Standard Contractual
Clauses.
4. Data Entry Control
Technical and organizational measures regarding recording and monitoring of the circumstances of
data entry to enable retroactive review.
System inputs are recorded in the form of log files therefore it is possible to review retroactively
whether and by whom Personal Data was entered, altered or deleted.
5. Data Processing Control
Technical and organizational measures to differentiate between the competences of principal and
contractor:
The aim of the data processing control is to provide that Personal Data is processed by a
commissioned data processor in accordance with the Instructions of the principal.
Details regarding data processing control are set forth in the Agreement and DPA.
6. Availability Control
Technical and organizational measures regarding data backup (physical/logical):
Data is stored in duplicate in the data center. The Processor’s database is stored in triplicate
in one data center and backed up to another.. The data centers can be switched in the event
of flooding, earthquake, fire or other physical destruction or power outage protect Personal
Data against accidental destruction and loss.
If Personal Data is no longer required for the purposes for which it was processed, it is deleted
promptly. It should be noted that with each deletion, the Personal Data is only locked in the first
instance and is then deleted for good with a certain delay. This is done in order to prevent accidental
deletions or possible intentional damage.
7. Separation Control
Technical and organizational measures regarding purposes of collection and separated
processing:
Personal Data used for internal purposes only e.g. as part of the respective customer relationship,
may be transferred to a third party such as a subcontractor, solely under consideration of contractual
arrangements and appropriate data protection regulatory requirements.
Employees are instructed to collect, process and use Personal Data only within the framework and
for the purposes of their duties (e.g. service provision). At a technical level, multi-client capability
includes separation of functions as well as appropriate separation of testing and production
systems.
Customer Data is stored in a way that logically separates it from other customer data.
The Controller's uploaded files are encrypted at rest using AES256 bit encryption and data in transit
is protected by Transport Layer Security ("TLS")." All other Controller Date is stored in the
Processor’s database.
On behalf of the data exporter:
Name:
Position:
Address:
Signature:
On behalf of the data importer:
Name:
Position:
Address: _______________________________________________
Signature:
Exhibit C
Commission Decision C(2010)593
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors
established in third countries which do not ensure an adequate level of data protection
the Controller, (the data “exporter”)
and
the Processor, (the data “importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following Standard Contractual Clauses (the “Standard Contractual Clauses”)
in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights
and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data
specified in Exhibit A of the DPA.
Clause 1
Definitions
For the purposes of the Standard Contractual Clauses all terms used in capitals shall have the meaning
given to them in the DPA unless defined otherwise below:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data
subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the
European Parliament and of the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free movement of such data 1;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal
data intended for processing on his behalf after the transfer in accordance with his instructions
and the terms of the Standard Contractual Clauses and who is not subject to a third country's
system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other
subprocessor of the data importer who agrees to receive from the data importer or from any
other subprocessor of the data importer personal data exclusively intended for processing
activities to be carried out on behalf of the data exporter after the transfer in accordance with
his instructions, the terms of the Standard Contractual Clauses and the terms of the written
subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and
freedoms of individuals and, in particular, their right to privacy with respect to the processing of
personal data applicable to a data controller in the Member State in which the data exporter is
established;
(f) 'technical and organizational security measures' means those measures aimed at protecting
personal data against accidental or unlawful destruction or accidental loss, alteration,
unauthorised disclosure or access, in particular where the processing involves the transmission
of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are
specified in Exhibit A of the DPA which forms an integral part of the Standard Contractual Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause
5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as
third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has
factually disappeared or has ceased to exist in law unless any successor entity has assumed
the entire legal obligations of the data exporter by contract or by operation of law, as a result of
which it takes on the rights and obligations of the data exporter, in which case the data subject
can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter
and the data importer have factually disappeared or ceased to exist in law or have become
1
insolvent, unless any successor entity has assumed the entire legal obligations of the data
exporter by contract or by operation of law as a result of which it takes on the rights and
obligations of the data exporter, in which case the data subject can enforce them against such
entity. Such third-party liability of the subprocessor shall be limited to its own processing
operations under the Standard Contractual Clauses.
4. The parties do not object to a data subject being represented by an association or other body if
the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue
to be carried out in accordance with the relevant provisions of the applicable data protection
law (and, where applicable, has been notified to the relevant authorities of the Member State
where the data exporter is established) and does not violate the relevant provisions of that
State;
(b) that it has instructed and throughout the duration of the personal data processing services will
instruct the data importer to process the personal data transferred only on the data exporter's
behalf and in accordance with the applicable data protection law and the Standard Contractual
Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and
organizational security measures specified in the Security Policy;
(d) that after assessment of the requirements of the applicable data protection law, the security
measures are appropriate to protect personal data against accidental or unlawful destruction or
accidental loss, alteration, unauthorised disclosure or access, in particular where the
processing involves the transmission of data over a network, and against all other unlawful
forms of processing, and that these measures ensure a level of security appropriate to the risks
presented by the processing and the nature of the data to be protected having regard to the
state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or
will be informed before, or as soon as possible after, the transfer that its data could be
transmitted to a third country not providing adequate protection within the meaning of Directive
95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to
Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter
decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Standard Contractual
Clauses, with the exception of the Security Policy, and a summary description of the security
measures, as well as a copy of any contract for subprocessing services which has to be made
in accordance with the Standard Contractual Clauses, unless the Standard Contractual
Clauses or the contract contain commercial information, in which case it may remove such
commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with
Clause 11 by a subprocessor providing at least the same level of protection for the personal
data and the rights of data subject as the data importer under the Standard Contractual
Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer2
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its
instructions and the Standard Contractual Clauses; if it cannot provide such compliance for
whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in
which case the data exporter is entitled to suspend the transfer of data and/or terminate the
contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the
instructions received from the data exporter and its obligations under the contract and that in
the event of a change in this legislation which is likely to have a substantial adverse effect on
the warranties and obligations provided by the Standard Contractual Clauses, it will promptly
notify the change to the data exporter as soon as it is aware, in which case the data exporter is
entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organizational security measures specified in the
Security Policy before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement
authority unless otherwise prohibited, such as a prohibition under criminal law to
preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request,
unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing
of the personal data subject to the transfer and to abide by the advice of the supervisory
authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the
processing activities covered by the Standard Contractual Clauses which shall be carried out
by the data exporter or an inspection body composed of independent members and in
possession of the required professional qualifications bound by a duty of confidentiality,
selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Standard Contractual Clauses,
or any existing contract for subprocessing, unless the Standard Contractual Clauses or contract
contain commercial information, in which case it may remove such commercial information,
with the exception of the Security Policy which shall be replaced by a summary description of
the security measures in those cases where the data subject is unable to obtain a copy from
the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained
its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause
11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Standard
Contractual Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of
the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled
to receive compensation from the data exporter for the damage suffered.
2
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1
against the data exporter, arising out of a breach by the data importer or his subprocessor of
any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has
factually disappeared or ceased to exist in law or has become insolvent, the data importer
agrees that the data subject may issue a claim against the data importer as if it were the data
exporter, unless any successor entity has assumed the entire legal obligations of the data
exporter by contract of by operation of law, in which case the data subject can enforce its rights
against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to
avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer
referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their
obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data
importer have factually disappeared or ceased to exist in law or have become insolvent, the
subprocessor agrees that the data subject may issue a claim against the data subprocessor
with regard to its own processing operations under the Standard Contractual Clauses as if it
were the data exporter or the data importer, unless any successor entity has assumed the
entire legal obligations of the data exporter or data importer by contract or by operation of law,
in which case the data subject can enforce its rights against such entity. The liability of the
subprocessor shall be limited to its own processing operations under the Standard Contractual
Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights
and/or claims compensation for damages under the Standard Contractual Clauses, the data
importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the
supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is
established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or
procedural rights to seek remedies in accordance with other provisions of national or
international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so
requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data
importer, and of any subprocessor, which has the same scope and is subject to the same
conditions as would apply to an audit of the data exporter under the applicable data protection
law.
3. The data importer shall promptly inform the data exporter about the existence of legislation
applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or
any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled
to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Standard Contractual Clauses shall be governed by the law of the Member State in which the data
exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Standard Contractual Clauses. This does not preclude
the parties from adding clauses on business related issues where required as long as they do not
contradict the Standard Contractual Clauses.
Clause 11
Subprocessing
1. The data importer shall not subcontract any of its processing operations performed on behalf of
the data exporter under the Standard Contractual Clauses without the prior written consent of
the data exporter. Where the data importer subcontracts its obligations under the Standard
Contractual Clauses, with the consent of the data exporter, it shall do so only by way of a
written agreement with the subprocessor which imposes the same obligations on the
subprocessor as are imposed on the data importer under the Standard Contractual Clauses.
Where the subprocessor fails to fulfil its data protection obligations under such written
agreement the data importer shall remain fully liable to the data exporter for the performance of
the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide
for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is
not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the
data exporter or the data importer because they have factually disappeared or have ceased to
exist in law or have become insolvent and no successor entity has assumed the entire legal
obligations of the data exporter or data importer by contract or by operation of law. Such third-
party liability of the subprocessor shall be limited to its own processing operations under the
Standard Contractual Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to
in paragraph 1 shall be governed by the law of the Member State in which the data exporter is
established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Standard
Contractual Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be
updated at least once a year. The list shall be available to the data exporter's data protection
supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data
importer and the subprocessor shall, at the choice of the data exporter, return all the personal
data transferred and the copies thereof to the data exporter or shall destroy all the personal
data and certify to the data exporter that it has done so, unless legislation imposed upon the
data importer prevents it from returning or destroying all or part of the personal data
transferred. In that case, the data importer warrants that it will guarantee the confidentiality of
the personal data transferred and will not actively process the personal data transferred
anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or
of the supervisory authority, it will submit its data processing facilities for an audit of the
measures referred to in paragraph 1.
Clause 13
Miscellaneous
1. These Standard Contractual Clauses take priority over any other agreement between the
parties, whether entered into before or after the date these Standard Contractual Clauses are
entered into.