Effective date: 30 April 2018
Data Processing Agreement for Global Customers with Model Clauses
This DPA is entered into between SolarWinds and the Customer and is incorporated into and governed by the terms of the Agreement.
- This DPA is entered into by Customer and SolarWinds as of the DPA Effective Date and amends any pre-existing Agreement.
- If you are accepting on behalf of Customer, you represent and warrant that you have full legal authority to bind your employer, or the applicable entity, to these terms.
DEFINITIONS. Any capitalised term not defined in this DPA will have the meaning given to it in the Agreement.
Affiliate 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 Customer and SolarWinds for the provision of the Services.
Controller means the Customer.
Customer Data means data (which may include personal data and the categories of data submitted, stored, sent or received via the Services by Customer, its Affiliates or end users.
Data Subject has the same meaning as the Directive (as amended from time to time, or replaced by subsequent legislation).
DPA means this data processing agreement and its schedules (together).
DPA Effective Date is the date Customer accepts this DPA by clicking to accept these terms or by signature below.
Directive means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing the Directive.
Model Contract Clauses means the standard contractual clauses for personal data transfer from controllers to processors c2010-593 – Decision 2010/87 EU.
Personal Data has the same meaning as in the Directive (as amended from time to time or replaced by subsequent legislation).
Processor means SolarWinds.
Sub-processors means any person or entity engaged by SolarWinds or an Affiliate to process Personal Data in the provision of the Services to the Customer.
Services means SolarWinds subscription services.
SolarWinds has agreed to provide the Services to the Customer in accordance with the terms of the Agreement. In providing the Services, SolarWinds will process Customer Data on behalf of the Customer. Customer Data may include Personal Data. SolarWinds will process and protect such Personal Data in accordance with the terms of this DPA. With respect to Customer Data, the parties acknowledge and agree that Customer is the data controller and SolarWinds is the data processor. Customer will comply with its obligations as a controller and SolarWinds will comply with its obligations as a processor under the DPA. Where a Customer Affiliate is the controller with respect to certain Customer Data, Customer represents and warrants to SolarWinds that it is authorized to instruct SolarWinds and otherwise act on behalf of such Customer Affiliate in relation to the Customer Data in accordance with the DPA
In providing the Services to the Customer pursuant to the terms of the Agreement, SolarWinds will process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Agreement and the Customer’s instructions documented in the Agreement and this DPA.
This DPA will begin on the DPA Effective Date and automatically terminate upon the termination of the Agreement.
4. SOLARWINDS OBLIGATIONS
SolarWinds may collect, process or use Personal Data only within the scope of this DPA.
SolarWinds confirms that is will process Personal Data on behalf of the Customer and will take steps to ensure that any natural person acting under the authority of SolarWinds who has access to Personal Data will only process the Personal Data on the documented instructions of the Customer.
SolarWinds will promptly inform the Customer, if in SolarWinds’ opinion, any of the instructions regarding the processing of Personal Data provided by the Customer, breach any applicable data protection laws.
SolarWinds will 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.
SolarWinds will implement appropriate technical and organisational 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.
SolarWinds will implement appropriate technical and organisational 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 ongoing 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 organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account will 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.
The technical and organisational measures detailed in Schedule 2 will be at all times adhered to as a minimum security standard. The Customer accepts and agrees that the technical and organisational measures are subject to development and review and that SolarWinds may use alternative suitable measures to those detailed in the schedules to this DPA.
The Customer acknowledges and agrees that, in the course of providing the Services to the Customer, it may be necessary for SolarWinds to access the Personal Data to respond to any technical problems or Customer queries and to ensure the proper working of the Services. All such access by SolarWinds will be limited to those purposes.
Where Personal Data relating to an EU Data Subject is transferred outside of the EEA it will be processed in accordance with the provisions of the Model 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 organisation located in a country which has other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
Taking into account the nature of the processing and the information available to SolarWinds, SolarWinds will assist the Customer by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights and the Customer’s compliance with the Customer’s data protection obligations in respect of the processing of Personal Data.
The Customer represents and warrants that it will comply with the terms of the Agreement, this DPA and all applicable data protection laws.
The Customer represents and warrants that it has obtained any and all necessary permissions and authorisations necessary to permit SolarWinds, its Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
The Customer is responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this DPA and the Agreement.
All Affiliates of the Customer who use the Services will comply with the obligations of the Customer set out in this DPA.
The Customer will implement appropriate technical and organisational 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 Customer will implement appropriate technical and organisational 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 ongoing 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 organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account will 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.
The Customer will take steps to ensure that any natural person acting under the authority of the Customer who has access to Personal Data only processes the Personal Data on the documented instructions of the Customer.
The Customer may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. SolarWinds 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.
The Customer acknowledges and agrees that some instructions from the Customer, including assisting with audits, inspections or DPIAs (defined below) by SolarWinds, may result in additional fees. In such case, SolarWinds will notify the Customer of its fees for providing such assistance in advance, unless otherwise agreed.
NOTIFICATION OF SECURITY BREACH
SolarWinds will notify the Customer 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).
SolarWinds will take all commercially reasonable measures to secure the Personal Data, to eliminate the Data Breach, and to assist the Customer in meeting the Customer’s obligations under applicable law
SolarWinds will make available to the Customer all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.
Any audit conducted under this DPA will 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 Customer, the Customer may conduct a more extensive audit which will be: (i) at the Customer’s expense; (ii) limited in scope to matters specific to the Customer and agreed in advance; (iii) carried out during business hours and upon reasonable notice which must be not less than 4 weeks unless an identifiable material issue has arisen; and (iv) conducted in a way which does not interfere with SolarWinds’ day-to-day business.
This clause does not modify or limit the rights of audit of the Customer, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
COMPLIANCE, COOPERATION AND RESPONSE
In the event that SolarWinds receives a request from a Data Subject in relation to Personal Data, SolarWinds will refer the Data Subject to the Customer unless otherwise prohibited by law. The Customer will reimburse SolarWinds for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that SolarWinds is legally required to respond to the Data Subject, the Customer will fully cooperate with SolarWinds as applicable.
SolarWinds will notify the Customer promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Customer, unless such notification is not permitted under applicable law or a relevant court order.
SolarWinds may make copies of and/or retain Personal Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
SolarWinds will reasonably assist the Customer in meeting its obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of processing and the information available to SolarWinds.
The parties acknowledge that it is the duty of the Customer to notify SolarWinds within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of SolarWinds. SolarWinds will 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 organisational measures to maintain compliance. If the parties agree that amendments are required, but SolarWinds is unable to accommodate the necessary changes, the Customer 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 will remain unaffected.
The Customer and SolarWinds and, where applicable, their representatives, will cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA.
For the term of the Agreement SolarWinds will provide Customer or end users with the ability to correct, block, export and delete Customer Data in a manner consistent with the functionality of the Services. Once Customer or end user deletes Customer Data and such Customer Data cannot be recovered by the Customer or end user (Customer-Deleted Data), SolarWinds will delete such Customer-Deleted Data from its systems within a maximum period of 365 days (including all backups) of termination; unless applicable law or regulations prevent it from returning or destroying all or part of the Personal Data.
The Customer acknowledges and agrees that: (i) Affiliates of SolarWinds may be used as Sub-processors; and (ii) SolarWinds and its Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
All Sub-processors who process Personal Data in the provision of the Services to the Customer will comply with the obligations of SolarWinds set out in this DPA.
Where Sub-processors are located outside of the EEA, SolarWinds 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 Model Contractual Clauses with SolarWinds; or (iii) have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
SolarWinds will make available to the Customer the current list of Sub-processors at www.samanage.com/support/faq/ which will include the identities of Sub-processors and their country of location. During the term of this DPA, SolarWinds will provide the Customer with prior notification, via email, of any changes to the list of Sub-processors who may process Personal Data before authorising any new or replacement Sub-processors to process Personal Data in connection with the provision of the Services.
The Customer may object to the use of a new or replacement Sub-processor, by notifying SolarWinds promptly in writing within 10 business days after receipt of SolarWinds’ notice. If the Customer objects to a new or replacement Sub-processor, and that objection is not unreasonable, the Customer may terminate the Agreement or applicable order with respect to those Services which cannot be provided by SolarWinds without the use of the new or replacement Sub-processor. SolarWinds will refund the Customer any prepaid and unused fees covering the remainder of the term of the applicable order following the effective date of termination with respect to such terminated Services.
The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
The parties agree that SolarWinds will be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Sub-processors to the same extent SolarWinds 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.
The parties agree that the Customer will 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 Customer itself.
Neither party is entitled to recover more than once in respect of the same claim.
SolarWinds will at the choice of the Customer: (i) delete or return Personal Data to the Customer after the end of the provision of the Services relating to processing within the time periods set out in the Agreement; and (ii) delete all Customer-deleted Data from its systems within a maximum period of 365 days (including all backups) of termination; unless applicable law or regulations prevent it from returning or destroying all or part of the Personal Data. Where any Personal Data is retained for such reasons the Personal Data shall be treated as Confidential Information and will no longer be actively processed.
This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions will be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and will replace the invalid provision. The same will apply to any omissions.
This DPA is governed by the laws of England and Wales. The courts of England have exclusive jurisdiction for the settlement of all disputes arising under this DPA.
To the extent of any conflict or inconsistency between the terms of this DPA and the remainder of the Agreement with respect to the privacy and security of Customer Data, the terms more protective of the Customer Data will apply. In all other cases, the terms of the Agreement control. Subject to the amendments in this DPA, the Agreement remains in full force and effect.
Overview of data processing activities to be performed by the Processor
The Customer 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.
SolarWinds receives data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.
The Processor is SolarWinds.
2. Data Subjects
The Personal Data transferred concern the following categories of Data Subjects:
- Employees and external consultants of the Controller (who are subject to the terms of the Agreement),
- Authorised 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.
- Service providers of the Controller.
3. Categories of Data
The Personal Data transferred concern the following categories of data:
- Personal details, names, phone numbers, user names, email addresses of Authorised Users
- Personal Data derived from the authorised users use of the Services such as records and business intelligence information.
5. Special categories of Data
Personal Data transferred concern the following special categories of data:
- No sensitive data or special categories shall be transferred to the Processor.
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: IT assets and service management.
- 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.
Technical and Organisational Security Measures
Description of the technical and organisational security measures implemented by SolarWinds:
1. Technical and Organizational Measures
The following sections define the current security measures established by SolarWinds. SolarWinds may change these at any time without notice by keeping a comparable or better level of security. This may mean that individual measures are replaced by new measures that serve the same purpose without diminishing the security level.
1.1 Physical Access Control:
Unauthorized persons will be prevented from gaining physical access to premises, buildings or rooms where data processing systems are located which process and/or use personal data.
All data centers used by SolarWinds adhere to strict security procedures enforced by guards, surveillance cameras, motion detectors, access control mechanisms and other measures to prevent equipment and data center facilities from being compromised. Only authorized representatives have access to systems and infrastructure within the data center facilities. To ensure proper functionality, physical security equipment (e.g. motion sensors, cameras, etc.) are maintained on a regular basis. In detail, the following physical security measures are implemented at all data centers:
- Amazon Web Services protects its assets and facilities using the appropriate means based on a security classification conducted by internal security personnel.
- All buildings that house data centers are secured through access control systems (smart card access system).
- As a minimum requirement, the outermost shell of the buildings are fitted with a certified key system including modern, active key management.
- Depending on the security classification, buildings, individual areas and surrounding premises are further protected by additional measures. These include specific access profiles, video surveillance, intruder alarm systems and biometric access control systems.
- Access rights are only granted to authorized persons on an individual basis according to the System and Data Access Control measures (see Section 1.2 and 1.3 below). This also applies to visitor access. Guests and visitors to buildings must register their names at reception and must be accompanied by authorized personnel. Data centers and all third party data center providers log the names and times of persons entering the private areas of SolarWinds within the data centers.
1.2 System Access Control:
All data processing systems used to provide the SolarWinds Service are prevented from being used without authorization.
- Multiple authorization levels are used to grant access to sensitive systems including those storing and processing Personal Data. Processes are in place to ensure that authorized users have the appropriate authorization to add, delete, or modify users.
- All users access SolarWinds’ systems with a unique identifier (user ID).
SolarWinds has procedures in place to ensure that requested authorization changes are implemented only in accordance with the guidelines (for example, no rights are granted without authorization). If a user leaves the company, their access rights are revoked.
- SolarWinds has established a password policy that prohibits the sharing of passwords, governs what to do if a password is disclosed, requires passwords to be changed on a regular basis and default passwords to be altered.
- Personalized user IDs are assigned for authentication. All passwords must fulfil defined minimum requirements and are stored in encrypted form. Each computer has a password-protected locking mechanism after a pre-set time.
- The company network is protected from the public network by firewalls.
- SolarWinds uses up–to-date antivirus software at access points to the company network (for e-mail accounts) and on all laptops and workstations.
- Security patch management is implemented to ensure timely deployment of relevant security updates.
- Full remote access to SolarWinds’ corporate network and critical infrastructure is protected by strong authentication.
1.3 Data Access Control:
Persons entitled to use data processing systems will gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.
- Access to personal, confidential or sensitive information is granted on a need-to-know basis. In other words, employees or external third parties have access to the information that they require in order to complete their work. SolarWinds uses authorization concepts that document how authorizations are assigned and which authorizations are assigned. All personal, confidential, or otherwise sensitive data is protected in accordance with the SolarWinds security policies and standards.
- All production servers of any SolarWinds Service are operated in the relevant data centers/server rooms. Security measures that protect applications processing personal, confidential or other sensitive information are regularly checked. To this end, SolarWinds conducts internal and external security checks and penetration tests on it’s IT systems.
- SolarWinds does not allow the installation of personal software or other software not approved by SolarWinds to systems being used for any SolarWinds Service.
- A SolarWinds security policy governs how data and data carriers are deleted or destroyed.
1.4 Data Transmission Control:
Personal Data must not be read, copied, modified or removed without authorization during transfer.
- Personal Data transfer over SolarWinds internal networks are protected as any other confidential data according to SolarWinds Security Policy. https://www.samanage.com/privacy-policy
- When the data is being transferred between SolarWinds and its customers, the protection measures for the transferred Personal Data are mutually agreed upon and made part of the Agreement. This applies to both physical and network based data transfer. In any case the Customer assumes responsibility for any data transfer from SolarWinds’ Point of Demarcation (e.g. outgoing firewall of the data center which hosts the SolarWinds Service).
1.5 Data Input Control:
SolarWinds can retrospectively examine and establish whether and by whom at SolarWinds entered, modified or removed Personal Data from data processing systems used to provide the SolarWinds Service.
SolarWinds only allows authorized persons to access Personal Data as required in the course of their work. SolarWinds implemented a logging system for input, modification and deletion, or blocking of Personal Data by SolarWinds or its Sub-processors to the greatest extent supported by the SolarWinds Service.
1.6 Job Control:
Personal Data being processed on commission will be processed solely in accordance with the Agreement and related instructions of the Customer.
- SolarWinds uses controls and processes to ensure compliance with contracts between SolarWinds and its customers, Sub-processors and other Service providers.
- As part of the SolarWinds Security Policy, Customer Data requires at least the same protection level as “confidential” information according to the SolarWinds information classification standard.
- All SolarWinds employees and contractual partners are contractually bound to respect the confidentiality of all sensitive information including trade secrets of SolarWinds customers and partners. https://www.samanage.com/privacy-policy
1.7 Availability Control:
Personal Data will be protected against accidental or unauthorized destruction or loss.
- SolarWinds employs backup processes and other measures that ensure rapid restoration of business critical systems as and when necessary.
- SolarWinds relies on use of uninterrupted power supplies (for example: UPS, batteries, generators, etc.) to ensure power availability to the data centers.
- SolarWinds has defined contingency plans as well as business and disaster recovery strategies for SolarWinds Services.
- Emergency processes and systems are regularly tested.
1.8 Data Separation Control
Customer specific Personal Data collected for different purposes can be processed separately.
- SolarWinds uses the technical capabilities of the deployed software (for example: multi-tenancy) to achieve data separation between Personal Data from one and any other customer.
- Customers (including their Affiliates) have access only to their own Customer Data.
1.9 Data Integrity Control
Ensures that Personal Data will remain intact, complete and current during processing activities:
SolarWinds has implemented a defence strategy in several layers as a protection against unauthorized modifications.
This refers to controls as stated in the control and measure sections as described above. In particular:
- Firewalls – including Web Application Firewall;
- Antivirus software;
- Backup and recovery;
- External and internal penetration testing;
- Regular external audits to prove security measures (SOC2 Type 2 & ISO 27001)
- Compliant with EU/US Privacy Shield
Model Contract Clauses
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
FOR 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.
(Insert Customer Name Here), (the data exporter)
SolarWinds USA Inc, 17 Edinburgh South Dr, STE 100 Cary, NC 2751, USA (the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Model Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the Personal Data specified in Schedule 1 of the DPA.
Clause 1 Definitions
For the purposes of the Clauses:
- ‘personal data‘, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- ‘the data exporter‘ means the controller who transfers the personal data;
- ‘the data importer‘ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the 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 Clauses and the terms of the written subcontract;
- ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organisational 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 Schedule 1 which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the 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 insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4 Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Schedule 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, 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;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any 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;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Schedule 2, 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 Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- 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 Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Clause 5 Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Schedule 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Schedule 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6 Liability
- 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.
- 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.
- 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 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 Clauses.
Clause 7 Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8 Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any 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.
- 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 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 Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11 Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the 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 obligations under such agreement.
- 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 Clauses.
- 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.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12 Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the 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.
- 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.