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Standard Contractual Clauses Controller to Processor

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STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

(a)  The purpose of these standard contractual clauses is to ensure compliance with the   requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b)  The Parties:

(i)  the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii)  the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c)  These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

 

(d)  The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

 
Clause 2

Effect and invariability of the Clauses

(a)  These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

 

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

 
Clause 3

Third-party beneficiaries

(a)  Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii)  Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii)  Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv)  Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii)  Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

 

(b)  Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

 
Clause 4

Interpretation

(a)  Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b)  These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

 
Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
 
Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
 
Clause 7

Docking clause

Intentionally deleted.

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 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 (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i)  the onward transfer is to a country 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)  GENERAL WRITTEN AUTHORISATION 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 90 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. (8) 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 (12);

 

(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 Spain.

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 Spain.
(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.

ANNEX I

 

A. LIST OF PARTIES

Data exporter(s): The data exporter is the data controller that has entered into a services agreement with the data importer. The identity and contact details of the data exporter are detailed within the services agreement to which this Clauses made a binding part.

Data importer(s):

Name: PEGASUS BUSINESS INTELLIGENCE LLP

Address: Two Lincoln Centre

5420 LBJ Freeway, Suite 900

Dallas, TX 75240

United States

The data importer is a leading global provider of B2B payments and business intelligence solutions to the hospitality industry located in the USA, the contact details of the data importer are detailed within the services agreement to which this Clauses made a binding part.

 

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The personal data transferred concern the following categories of data subjects:

hotel guests and contact personnel of the data exporter.

Categories of personal data transferred

The personal data transferred concern the following categories of data:

Name, Surname and Booking data of hotel guests.

Contact data (email address, telephone number) of the data exporter contact personnel.

The frequency of the transfer

The data is transferred on continuous basis.

 

Nature of the processing and Purpose(s) of the data transfer and further processing

In the context of the activities that the data processor develops in favor of its customers, it may access to certain personal data since the access is necessary to provide the contracted services.

The scope of the services is set out in the services agreement executed between the data importer and the data exporter, and the personal data will be processed by the data importer as data processor to deliver those services and to comply with the terms of the services agreement and theses Clauses.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

The personal data will be deleted or returned at the data exporter written request, after the end of the provision of the relevant services related to processing or, if earlier, as soon as processing by the data processor of any personal data is no longer required for the performance of the parties’ obligations under the services agreement executed between the data controller and the data processor, and securely delete existing copies.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

For data used to issue invoices in Italy and India, the data processor interacts with Sovos to ensure all local regulatory requirements are met.

Flexential is providing data center platform, offering colocation disaster recovery services for Onyx services that are not a part of a cloud-based infrastructure. US operations and data centers are fully operated by Flexential while EU based data center facilities are operated by Equnix.

Amazon Web Services (AWS) is the preferred platform for cloud enables services provided by Onyx in a private cloud environment (VPC). Microsoft Azure also provides cloud services but is limited to InvoicePro services.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

Spain


ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

Access Control of Processing Areas

Data importer implements suitable measures to prevent unauthorized persons from gaining access to the data processing equipment (networking equipment servers and related hardware) where the personal data are processed or used, including:

  • Establishing security areas;
  • Protection and restriction of access paths;
  • Establishing access authorizations for employees and third parties, including the respective documentation;
  • All access to the data center where personal data are hosted is logged, monitored, and tracked; and
  • The data center where personal data are hosted is secured by a security alarm system, and other appropriate security measures

Access Control to Data Processing Systems

  • Data importer implements suitable measures to prevent their data processing systems from being used by unauthorized persons, including:
  • Use of adequate encryption technologies;
  • Identification of the terminal and/or the terminal user to the data importer/sub-processor and processing systems;
  • Automatic temporary lock-out of user terminal if left idle, identification and password required to reopen;
  • Automatic temporary lock-out of the user ID when several erroneous passwords are entered, log file of events, monitoring of break-in-attempts (alerts).

Access Control to Use Specific Areas of Data Processing Systems

Data importer/sub-processor commits that the persons entitled to use their data processing system are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:

  • Employee policies and training in respect of each employee’s access rights to the personal data;
  • Monitoring capability in respect of individuals who delete, add or modify the personal data;
  • Release of data only to authorized persons, including allocation of differentiated access rights and roles; and
  • Use of adequate encryption technologies; and control of files, controlled and documented destruction of data

Availability Control

Data importer implements suitable measures to ensure that personal data are protected from accidental destruction or loss, including:

  • Infrastructure redundancy; and
  • Backup is stored at an alternative site and available for restore in case of failure of the primary system;
  • Primary and secondary sites for full service failover.

Transmission Control

Data importer implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:

  • Use of adequate firewall, VPN and encryption technologies to protect the gateways and pipelines through which the data travels; and
  • As far as possible, all data transmissions are logged, monitored and tracked.

Sub-Processor, vendor assessments

Data importer assesses all sub-processors and vendors to ensure that all personal data is protected according to data importers security policies and are compliant with data importers information security program including:

  • Annual vendor assessments determining risk; and
  • Data protection measures including certifications.

1. DATA CENTER AND NETWORK SECURITY

(a) Data Centers

  • Colocation (colo): The Data Importer uses a 3rd party to host data center facilities, colocation services provide a secure physical server housing and networking connections in addition to redundant power and cooling resources to protect infrastructure.
  • Infrastructure: The Data Importer maintains geographically distributed data centers. The Data Importer stores all production data in physically secure data centers.
  • Redundancy: Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks. Dual circuits, switches, networks or other necessary devices help provide this redundancy. The Services are designed to allow the Data Importer to perform certain types of preventative and corrective maintenance without interruption. All environmental equipment and facilities have documented preventative maintenance procedures that detail the process for and frequency of performance in accordance with the manufacturer’s or internal specifications.
  • Power: The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, 7 days a week. In most cases, a primary as well as an alternate power source, each with equal capacity, is provided for critical infrastructure components in the data center. Backup power is provided by various mechanisms such as uninterruptible power supplies (UPS) batteries, which supply consistently reliable power protection during utility brownouts, blackouts, over voltage, under voltage, and out-of-tolerance frequency conditions. If utility power is interrupted, backup power is designed to provide transitory power to the data center, at full capacity, for up until the diesel generator systems take over. The diesel generators are capable of automatically starting up within seconds to provide enough emergency electrical power to run the data center at full capacity typically for a period of days.
  • Businesses Continuity: The Data Importer replicates data over multiple systems to help to protect against accidental destruction or loss. The Data Importer has designed and regularly plans and tests its business continuity planning/disaster recovery programs.

(b) Networks and Transmission

  • Data Transmission: Data centers are typically connected via high-speed private links to provide secure and fast data transfer between data centers. This is designed to prevent data from being read, copied, altered or removed without authorization during electronic transfer or transport. Dedicated links between office locations and data centers are provided using SD-WAN The Data Importer transfers data via Internet standard protocols.
  • External Attack Surface: The Data Importer employs multiple layers of network devices and intrusion detection to protect its external attack surface. The Data Importer considers potential attack vectors and incorporates appropriate purpose-built technologies into external facing systems.
  • Intrusion Detection: Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. The Data Importer intrusion detection involves tightly controlling the size and make-up of the Data Importer’s attack surface through preventative measures and employing intelligent detection controls at data entry points.
  • Incident Response: The Data Importer monitors a variety of communication channels for security incidents, and The Data Importer’s security personnel will react promptly to known incidents.
  • Encryption Technologies: The Data Importer makes HTTPS encryption (also referred to as TLS connection) available for encryption of data in transit, industry best practice configuration (ciphers) and protocols are used and configured as appropriate. When data is transferred using FTP a secure channel is used (SFTP of FTPS)
  • Application Security: The Data Importer has developed and implemented a secure development program, based on Open Web Application Security Project (OWASP), and Microsoft Security Development Lifecycle. Following completion, sensitive product developments are tested to ensure that application security has been thoroughly and properly addressed
  • Vulnerability monitoring through penetration testing: The Data Importer performs at least two annual Information Security penetration tests, which are conducted by accredited and completely independent information security companies. The Data Importer performs vulnerability assessment scanning using third-party tools at least once a month, and after any major infrastructure change in our production environment

2. ACCESS AND SITE CONTROLS
(a) Site Controls

  • On-site Data Center Security Operation: The Data Importer’s data centers maintain an on-site security operation responsible for all physical data center security functions 24 hours a day, 7 days a week. The on-site security operation personnel monitor closed circuit TV (CCTV) cameras and all alarm systems. On-site security operation personnel perform internal and external patrols of the data center regularly.
  • Data Center Access Procedures: The Data Importer maintains formal access procedures for allowing physical access to the data centers. The data centers are housed in facilities that require electronic card key access, with alarms that are linked to the on-site security operation. All entrants to the data center are required to identify themselves as well as show proof of identity to on-site security operations. Only authorized employees, contractors and visitors are allowed entry to the data centers. Only authorized employees and contractors are permitted to request electronic card key access to these facilities. Data center electronic card key access requests must be made through e-mail and require the approval of the data center managers. All other entrants requiring temporary data center access must: (i) obtain approval in advance from the data center managers for the specific data center and internal areas they wish to visit; (ii) sign in at on-site security operations; and (iii) reference an approved data center access record identifying the individual as approved.
  • On-site Data Center Security Devices: The Data Importer’s data centers employ an electronic card key and biometric access control system that is linked to a system alarm. The access control system monitors and records each individual’s electronic card key and when they access perimeter doors, shipping and receiving, and other critical areas. Unauthorized activity and failed access attempts are logged by the access control system and investigated, as appropriate. Authorized access throughout the business operations and data centers is restricted based on zones and the individual’s job responsibilities. The fire doors at the data centers are alarmed. CCTV cameras are in operation both inside and outside the data centers. The positioning of the cameras has been designed to cover strategic areas including, among others, the perimeter, doors to the data center building, and shipping/receiving. On-site security operations personnel manage the CCTV monitoring, recording and control equipment. Secure cables throughout the data centers connect the CCTV equipment. Cameras record on site via digital video recorders 24 hours a day, 7 days a week. The surveillance records are retained minimum 30 days based on activity and compliance requirements.

(b) Access Controls

  • Infrastructure Security Personnel: The Data Importer has, and maintains, a security policy for its personnel, and requires security training as part of the training package for its personnel. The Data Importer’s infrastructure and security personnel are responsible for the ongoing monitoring of the Data Importer’s security infrastructure, the review of the Services, and responding to security incidents.
  • Access Control and Privilege Management: The Data Exporter’s administrators must authenticate themselves via a central authentication system or via a single sign on system in order to administer the Services.
  • Internal Data Access Processes and Policies: The Data Importer’s internal data access processes and policies are designed to prevent unauthorized persons and/or systems from gaining access to systems used to process personal data. The Data Importer designs its systems to: (i) only allow authorized persons to access data they are authorized to access; and (ii) ensure that personal data cannot be read, copied, altered or removed without authorization during processing, use and after recording. The systems are designed to detect any inappropriate access. The Data Importer employs a centralized access management system to control personnel access to production servers, and only provides access to a limited number of authorized personnel. Active Directory, LDAP and Kerberos are designed to provide the Data Importer with secure and flexible access mechanisms. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information. The Data Importer requires the use of unique user IDs, strong passwords and two factor authentication where appropriate to minimize the potential for unauthorized account use. The granting or modification of access rights is based on the authorized personnel’s job responsibilities; job duty requirements necessary to perform authorized tasks; and a need to know basis. The granting or modification of access rights must also be in accordance with The Data Importer’s internal data access policies and training. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include restrictions on password reuse and sufficient password strength.

3. DATA- STORAGE AND DISPOSAL

(a) Data Storage

The Data Importer stores data in a multi-tenant environment on the Data Importer managed/private servers. The data and file system architecture are replicated between multiple geographically dispersed data centers. The Data Importer encrypts all data at rest, the Data Importer also logically isolates the Data Exporter’s data, and the Data Exporter will be given control over specific data sharing policies.

(b) Data Disposal

Disks containing data may experience performance issues, errors or hardware failure that lead them to be decommissioned. Every Decommissioned Disk is subject to a series of data destruction processes before leaving the Data Importer’s premises either for reuse or destruction. Decommissioned Disks are erased in a multi-step process and verified complete. The erase results are logged by the Decommissioned Disk’s serial number for tracking.

4. PERSONAL SECURITY

The Data Importer personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. The Data Importer conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labour law and statutory regulations.

Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, the Data Importer’s security and privacy policies. Personnel are provided with security training. Personnel handling customer data are required to complete additional requirements appropriate to their role. The Data Importer’s personnel will not process customer data without authorization.

5. SUBPROCESSOR SECURITY

Before on boarding Sub processors, the Data Importer conducts an audit of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide.

 


ANNEX III

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

Sovos: Sovos is enabling the issuing of invoices Onyx InvoicePro CTC Process to Italy and India.

Kurt D. Ring

Global Alliances Manager | Sovos Compliance

O: 978.527.1276 | M: 617.877.2115

200 Ballardvale Street, Building 1, 4th Floor, Wilmington MA 01887

Flexential: Flexential provides data center platform, offering colocation disaster recovery services.

Derek Sieburg | Sr. Customer Success Manager | Flexential

O:720.354.3758|derek.sieburg@flexential.com|www.flexential.com privacy@flexential.com

Attn: Privacy & Security Officer, Flexential Corp., 8809 Lenox Pointe Drive, Suite G, Charlotte, NC 28273

https://www.flexential.com/flexential-gdpr-policy-statement

Equinix: Equinix provides data center facilities and infrastructure for EU located services provided by Flexential

PrivacyOffice@equinix.com +1.866.977.3749

https://www.equinix.nl/about/legal/privacy

Amazon Web Services (AWS): AWS is the preferred platform for cloud enables services provided by Onyx. For more details, please refer to the AWS GDPR DPA which is incorporated into the AWS Service Terms

https://aws.amazon.com/privacy/

Microsoft Azure: Azure provides cloud services for hosting Onyx InvoicePro frontend. Please see Microsoft Online Services Data Protection Addendum for more information.

Microsoft Corporation

Attn: Chief Privacy Officer

1 Microsoft Way

Redmond, WA 98052 USA