YGG Data Processing Addendum
This Data Processing Addendum (“DPA”), including the Standard Contractual Clauses referenced herein, governs the data processing arrangements between the Your Giving Group (“YGG”) and Customer.
This agreement amends and supplements any existing and currently valid agreement either previously or concurrently made between the Customer and YGG, including the YGG Terms of Service.
Unless otherwise defined in the Agreement, all capitalised terms used in this DPA will have the meanings given to them below:
‘Controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data, and, unless otherwise specified, is the Customer.
“Customer” means the organisation or individual to whom YGG provides Services under the YGG Terms of Service.
“Customer-Collected Data” means personal data that is collected and used by the Customer in the course of using the Services.
“Data Protection Laws” means all applicable legislation relating to data protection and privacy applicable to the respective party in the role of Processing Personal Data in question under this DPA (including, but not limited to, the EU GDPR, the UK GDPR and the data protection and privacy laws of Australia); in each case as amended, repealed, consolidated or replaced from time to time.
“EEA” means the European Economic Area.
“YGG Services” means the provision of Services to the Customer as stated in the Terms of Service.
“EU GDPR” means Regulation 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 and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer-Collected Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “process”, “processes” and “processed” will be interpreted accordingly.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means Schedule C, attached to and forming part of this DPA, pursuant to the European Commission’s Decision (EU) 2021/914 of 4 June 2021,; as may be amended, superseded or replaced from time to time.
“UK GDPR” means Regulation 2016/679 of the European Parliament and of the Council 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) as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018.
“YGG Security Standards” means the security measures outlined in Schedule B.
- Effective Date
This DPA is effective on the date YGG begins to process Personal Data on behalf of the Customer.
- Data Processing.
- Scope and Roles. This DPA applies when Customer-Collected Data is stored or processed by YGG on behalf of the Customer. In this context, YGG will act as a “Processor”, and the Customer will be acting as a “Controller” of the Customer-Collected Data.
- Details of Data Processing
- Subject matter. The subject matter of the data processed under this DPA is Customer-Collected Data.
- Duration. As between the Customer and YGG, the duration of the data processing under this DPA is determined by the YGG Terms of Service.
- Purpose. The purpose of the data processing under this DPA is the provision of Services to the Customer.
- Nature of the processing: Storage and processing of Customer-Collected Data by YGG and the Customer.
- Type of Personal Data: Customer-Collected Data processed by YGG for the purpose of providing Services.
- Categories of data subjects: The data subjects may include the Customer’s organisational members, representatives or employees, whose Personal Data is collected in the course of using the Services.
- Compliance with Laws. Each party will comply with the Data Protection Laws and all laws, rules and regulations applicable to it and binding on it in the performance of this DPA.
- Pursuant to the Data Protection Laws and the YGG Terms of Service, the Customer, acting as Controller, shall:
- ensure that the appointment of YGG as a Processor and any instructions, activities and acts concerning Personal Data have been validly authorised and do not breach the Data Protection Laws;
- obtain the consent of the data subjects to the conditions for Processing described in Section 3(b) of this DPA;
- obtain parental or guardian consent concerning the Processing of Personal Data of any data subject below the age of 16 (or such other age of a minor as may be determined by applicable Member State law);
- obtain the consent of the data subjects concerning the collection and Processing of Personal Data of a sensitive nature, including without limitation, Personal Data concerning religious beliefs;
- consent and obtain the consent of data subjects to the transfer of Personal Data outside to other processors, in accordance with the conditions set out in Sections 5(h) and (i); and
- properly inform and obtain all necessary rights, authorisations or consents from any data subjects to whom the Personal Data relates, to enable YGG to lawfully access their Personal Data in connection with this DPA and the Agreement and to process their Personal Data outside of their country of residence and the EEA as applicable.
- Pursuant to the Data Protection Laws and the YGG Terms of Service, YGG, acting as Processor, shall:
- process the Personal Data only on documented instructions from the Controller unless required to do so by the Data Protection Laws to which YGG is subject; in such a case, YGG shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- take all appropriate technical and organizational security measures required of Processors pursuant Data Protection Laws (including the requirements set out in Article 32 of the EU GDPR), and shall take the security measures specified in Schedule B.
- taking into account the nature of the processing, assist the Controller, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights set forth in the Data Protection Laws (including Chapter III of the EU GDPR). YGG may charge a fee (based on Processor’s reasonable costs) for responding to data subject requests.
- assist the Controller in ensuring compliance with the necessary obligations pursuant to Data Protection Laws (including Articles 32 to 36 of the EU GDPR), taking into account the nature of processing and the information available to Processor.
- at the direction of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of services relating to processing, and delete existing copies unless an applicable law requires storage of the Personal Data; provided, however, that YGG may retain Personal Data for the length of any applicable statutes of limitations for the purposes of bringing or defending claims.
- make available to the Controller all information necessary to demonstrate compliance with the obligations set forth in the Data Protection Laws (including the obligations set forth in Article 28 of the EU GDPR) and allow for and contribute to audits, including inspections, conducted by the Controller and immediately inform the Controller if, in its opinion, an instruction infringes the Data Protection Laws (including the EU GDPR or other European Union or Member State data protection provisions). YGG may charge a fee (based on Processor’s reasonable costs) for any audits.
- Where the Processor engages another processor for carrying out specific processing activities on behalf of Controller, the same data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act under the Data Protection Laws, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Laws.
- The Controller grants a general authorization to YGG to appoint its affiliates as sub-processors and a specific authorization to YGG and its affiliates to appoint as sub-processors third parties that provide reasonable technological and organizational safeguards to protect the Personal Data. Please email us at firstname.lastname@example.org at any time, to request a list of our sub-processors and/or to subscribe to our sub-processor email updates.
- YGG shall notify the Controller without undue delay after becoming aware of a Personal Data breach. Such notice will, at a minimum:
- describe the nature of the Personal Data breach including where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of Personal Data records concerned;
- communicate the name and contact details of the data protection officer or other contact where more information can be obtained;
- describe the likely consequences of the personal data breach; and
- describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
- International Transfers
- The Controller acknowledges and agrees that YGG is located in the United States and that the provision of Personal Data to YGG for processing is a transfer of Personal Data to the United States.
- All transfers of Personal Data out of the EEA, United Kingdom and other jurisdictions, to YGG in the United States (or to any other country that does not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws), shall be governed by the Standard Contractual Clauses. The Standard Contractual Clauses (and the Appendices to the Standard Contractual Clauses) set out in Schedule C, are incorporated in this DPA by this reference, as applicable.
- To extent that and for so long as the Standard Contractual Clauses as implemented in accordance with this DPA cannot be relied on by the parties to lawfully transfer Personal Data in compliance with the UK GDPR, the applicable standard data protection clauses issued, adopted or permitted under the UK GDPR shall be incorporated by reference, and the annexes, appendices or tables of such clauses shall be deemed populated with the relevant information set out in Schedule A and Schedule B of this DPA.
Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the Customer and YGG, this Agreement prevails to the extent of the inconsistency.
The data exporter is the entity identified as “Controller” in the DPA
Your Giving Group
901 Woodland Street, Suite 104
Nashville, TN, 37206
Phone (US): (424) 228-8870
Phone (AU): +61 (0) 7 3062 2359
Data subjects are defined in Section 3(b) of the DPA.
Categories of data
The personal data is defined in Section 3(b) of the DPA.
The processing operations, frequency of transfer, nature of processing and duration of processing are defined in Section 3(b) of the DPA, unless otherwise agreed in writing.
The data may be transferred and further processed as necessary to fulfill the purpose defined in Section 3(b) of the DPA and/or as compelled by applicable laws or otherwise agreed in writing.
Sensitive data transferred will include information relating to the data subject’s religious affiliation. Sensitive data will be subject to the safeguards outlined in Schedule B, including access control, disclosure control and instructional control.
YGG Security Standards
- DATA SECURITY GOVERNANCE
- YGG maintains internal organisational and governance procedures to appropriately manage information throughout its lifecycle. YGG regularly tests, assesses and evaluates the effectiveness of its Data Security Standards in managing risks to Personal Data.
YGG also has implemented:
- An incident response management process; and
- Data protection by design and default (as part of the YGG architecture principles).
- PHYSICAL ACCESS CONTROL
- YGG uses a variety of measures to prevent unauthorised access to the physical premises where Personal Data are processed. Those measures include:
- Centralized key and code management and card-key procedures for access to YGG managed premises;
- Surveillance systems including alarms and, as appropriate, CCTV monitoring; and
- Receptionists and visitor policies.
- VIRTUAL ACCESS CONTROL
- YGG implements appropriate measures to prevent its systems from being used by unauthorised persons. This is accomplished by:
- Individual, identifiable and role-based user account assignment;
- Role-based and password protected access and authorisation procedures;
- Centralised, standardised password management and password policies (minimum length/characters, change of passwords);
- Deactivation of user accounts after 5 failed login attempts;
- Automatic log-off in case of inactivity;
- Anti-virus management.
- DATA ACCESS CONTROL
- Individuals that are granted use of and access to YGG systems as part of the provision of the Services are only able to access the data that are required to be accessed by them within the scope of their responsibilities and to the extent covered by their respective access permission (authorisation) and such data cannot be read, copied, modified or removed without specific authorisation. This is accomplished by:
- Authentication at operating system level
- Separate authentication at application level
- Authentication against centrally managed authentication system
- Segregation of duties and authorisations between users, administrators and system developers
- Change control procedures that govern the handling of changes (application or OS) within the environment
- Remote access only via VPN including appropriate authorisation and authentication
- Logging of system and network activities to produce an audit-trail in the event of system misuse
- DISCLOSURE CONTROL
- YGG implements appropriate measures to prevent data from being read, copied, altered or deleted by unauthorised persons during electronic transmission and during the transport of data storage media. YGG also implements appropriate measures to verify to which entities’ data are transferred. This is accomplished by:
- Data transfer protocols including encryption for data carrier/media
- Data transfer via Secure File Transfer Protocol
- Encrypted VPN
- No physical transfers of backup media
- DATA ENTRY CONTROL
- YGG implements appropriate measures to monitor whether data have been entered, changed or removed (deleted), and by whom. This is accomplished by:
- Documentation of administration activities (user account setup, change management, access and authorisation procedures)
- Archiving of password-reset and access requests
- System log-files enabled by default
- Storage of audit logs for defined periods of time for audit trail analysis
- Centralisation of audit logs to correlate incidents cross-system
- INSTRUCTIONAL CONTROL
- YGG implements appropriate measures to ensure that data may only be processed in accordance with the instructions of the Customer. Those measures include:
- Binding policies and procedures on YGG employees
- Where sub-processors are engaged in the processing of data, including appropriate contractual provisions to the agreements with sub-processors to maintain instructional control rights
- AVAILABILITY CONTROL
- YGG maintains appropriate levels of redundancy and fault tolerance for accidental destruction or loss of data, including:
- Backup and recovery management systems
- Disaster recovery and business continuity plans and systems
- Storage and archive policies
- Anti-virus, anti-spam and firewall systems and management including policies
- Use of appropriately certified data centres.
- SEPARATION CONTROL
- YGG implements appropriate measures to ensure that data that are intended for different purposes are processed separately. This is accomplished by:
- Access request and authorisation processes provide Customer data separation (logical application-based segregation)
- Separation of functions (productions/testing)
Standard Contractual Clauses (Controller to Processor)
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) () for the transfer of data to a third country.
- The Parties:
- 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
- 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’).
- 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’).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- 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.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8.1(b), 8.9(a), (c), (d) and (e);
- Clause 9(a), (c), (d) and (e);
- Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18(a) and (b).
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
- 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.
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.
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
- Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party
SECTION II – OBLIGATIONS OF THE PARTIES
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.
- 1 Instructions
- 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.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
- 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.
- 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.
- 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.
- 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).
- 6 Security of processing
- 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 pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, 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.
- 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 authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- 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.
- 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.
- 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 Onward transfers
- The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- 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;
- 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;
- 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
- 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.
- 9 Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- 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.
- 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.
- 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.
- 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.
Use of sub-processors
- 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 30 business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- 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.
- 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.
- 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.
Data subject rights
- 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.
- 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.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- 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.
- 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.
- 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:
- 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;
- refer the dispute to the competent courts within the meaning of Clause 18.
- 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
- 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.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- 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 behavior is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
- he 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
Local laws and practices affecting compliance with the Clauses
- 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.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- 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;
- 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;
- 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.
- 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.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- 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).
- 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.
Obligations of the data importer in case of access by public authorities
- 1 Notification
- 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:
- 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
- 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.
- 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.
- 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.).
- 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.
- 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.
- 2 Review of legality and data minimisation
- 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).
- 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.
- 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
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- 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).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- 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;
- the data importer is in substantial or persistent breach of these Clauses; or
- 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.
- 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.
- 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.
- These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of by the law of the Republic of Ireland (without reference to conflicts of law principles).
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of the jurisdiction specified in Clause 17.
- 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.
- The Parties agree to submit themselves to the jurisdiction of such courts
APPENDIX TO STANDARD CONTRACTUAL CLAUSES
- A. LIST OF PARTIES
- The parties are defined in Schedule A of the DPA.
- B. DESCRIPTION OF TRANSFER
- A description of the transfer is provided in Schedule A of the DPA.
- C. COMPETENT SUPERVISORY AUTHORITY
- For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is either:
- where Customer is established in an EU Member State, the supervisory authority responsible for ensuring Customer's compliance with the GDPR;
- where Customer is not established in an EU Member State but falls within the extra-territorial scope of the GDPR and has appointed a representative, the supervisory authority of the EU Member State in which Customer's representative is established; or
- (iii) where Customer is not established in an EU Member State but falls within the extra-territorial scope of the GDPR without having to appoint a representative, the supervisory authority of the EU Member State in which the Data Subjects are predominantly located. In relation to Personal Data that is subject to the UK GDPR, the competent supervisory authority is the UK Information Commissioner.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational security measures implemented by the data importer are as described in Schedule B of the DPA.