LeaseAccelerator GDPR Data Processing Addendum
LeaseAccelerator GDPR Data Processing Addendum
Effective Date: 1 March 2022
This Data Processing Addendum (“DPA”) supplements the LeaseAccelerator Customer Agreement as updated from time to time between Customer and LeaseAccelerator, or other agreement between Customer and LeaseAccelerator governing Customer’s use of the Service Offerings (the “Agreement”) when the GDPR applies to your use of the LeaseAccelerator Services to process Customer Data. This DPA is an agreement between you and the entity you represent (“Customer”, “you” or “your”) and the applicable contracting entity under the Agreement (“LeaseAccelerator”). Unless otherwise defined in this DPA or in the Agreement, all capitalised terms used in this DPA will have the meanings given to them in Section 17 of this DPA.The Parties agree that on or before December 15, 2022, they will update this DPA to incorporate the new standard contractual clauses established under Regulation (EU) 2016/679.
1. Data Processing
1.1 Scope and Roles. This DPA applies when Customer Data is processed by LeaseAccelerator. In this context, LeaseAccelerator will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR).
1.2 Details of Data Processing. The details of processing, including subject matter, purpose of processing, nature of processing, categories of data subjects and type of Customer Data are described in Appendix 1 to the Standard Contractual Clauses attached as Annex 2.
1.3 Compliance with LeaseAccelerator. Each party will comply with all LeaseAccelerator, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
2. Customer Instructions
The parties agree that this DPA and the Agreement (including the provision of instructions via configuration tools such as the LeaseAccelerator management console and APIs made available by LeaseAccelerator for the Services) constitute Customer’s documented instructions regarding LeaseAccelerator’s processing of Customer Data (“Documented Instructions”). LeaseAccelerator will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between LeaseAccelerator and Customer, including agreement on any additional fees payable by Customer to LeaseAccelerator for carrying out such instructions. Customer is entitled to terminate this DPA and the Agreement if LeaseAccelerator declines to follow instructions requested by Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.
3. Confidentiality of Customer Data
LeaseAccelerator will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends LeaseAccelerator a demand for Customer Data, LeaseAccelerator will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, LeaseAccelerator may provide Customer’s basic contact information to the governmental body. If compelled to disclose Customer Data to a governmental body, then LeaseAccelerator will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless LeaseAccelerator is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.
4. Confidentiality Obligations of LeaseAccelerator Personnel
LeaseAccelerator restricts its personnel from processing Customer Data without authorisation by LeaseAccelerator as described in the LeaseAccelerator Security Standards. LeaseAccelerator imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
5. Security of Data Processing
5.1 LeaseAccelerator has implemented and will maintain the technical and organisational measures for the LeaseAccelerator Network as described in the LeaseAccelerator Security Standards and this Section. LeaseAccelerator has implemented and will maintain the following technical and organisational measures:
(a) security of the LeaseAccelerator Application as set out in Section 1.1 of the LeaseAccelerator Security Standards;
(b) physical security of the facilities as set out in Section 1.2 of the LeaseAccelerator Security Standards;
(c) measures to control access rights for LeaseAccelerator employees and contractors in relation to the LeaseAccelerator application as set out in Section 1 of the LeaseAccelerator Security Standards; and
(d) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by LeaseAccelerator as described in Section 2 of the LeaseAccelerator Security Standards.
5.2 Customer may elect to implement technical and organisational measures in relation to Customer Data. Such technical and organisational measures include the following which may be obtained by Customer from LeaseAccelerator as described in the Documentation,
(a) database layer encryption to ensure an appropriate level of security;
6.1 Authorised Sub-processors. Customer acknowledges and agrees that LeaseAccelerator may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. If LeaseAccelerator engages the use of a new sub-processor, LeaseAccelerator will update the applicable website and provide Customer with a mechanism to obtain notice of that update. Within thirty (30) days after receipt of LeaseAccelerator’s notice, Customer may object to a new sub-processor, by notifying LeaseAccelerator, promptly, in writing. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, LeaseAccelerator will use reasonable efforts to make or recommend a commercially reasonable change to Customer’s use of the Services to avoid Processing of Customer Data by the objected-to new Subprocessor without unreasonably burdening Customer. If LeaseAccelerator is unable to make available such change within a reasonable period of time, Customer may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by LeaseAccelerator without the use of the objected-to new Sub-processor by providing written notice to LeaseAccelerator. In such circumstance, LeaseAccelerator will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
The current listing of LeaseAccelerator Sub-processors is as identified in Annex 3, attached hereto.
6.2 Sub-processor Obligations. Where LeaseAccelerator authorises any sub-processor as described in Section 6.1:
(i) LeaseAccelerator will restrict the sub-processor’s access to Customer Data only to what is necessary to maintain the Services or to provide the Services to Customer and any End Users in accordance with the Documentation and LeaseAccelerator will prohibit the sub-processor from accessing Customer Data for any other purpose;
(ii) LeaseAccelerator will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by LeaseAccelerator under this DPA, LeaseAccelerator will impose on the sub- processor the same contractual obligations that LeaseAccelerator has under this DPA; and
(iii) LeaseAccelerator will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause LeaseAccelerator to breach any of LeaseAccelerator’s obligations under this DPA.
7. Data Subject Rights
Taking into account the nature of the Services, LeaseAccelerator offers Customer certain controls as described in 5.2 that Customer may elect to use to comply with its obligations towards data subjects. Should a data subject contact LeaseAccelerator regarding correction or deletion of its personal data, LeaseAccelerator will use commercially reasonable efforts to forward such requests to Customer.
8. Security Breach Notification
8.1 Security Incident. LeaseAccelerator will (a) notify Customer of a Security Incident within forty-eight (48) hours after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident.
8.2 LeaseAccelerator Assistance. To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, LeaseAccelerator will include in the notification under section 9.1(a) such information about the Security Incident as LeaseAccelerator is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to LeaseAccelerator, and any restrictions on disclosing the information, such as confidentiality.
8.3 Unsuccessful Security Incidents. Customer agrees that:
(i) an unsuccessful Security Incident will not be subject to this Section 9. An unsuccessful Security Incident is one that results in no unauthorised access to Customer Data or to any of LeaseAccelerator’s equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and
(ii) LeaseAccelerator’s obligation to report or respond to a Security Incident under this Section 9 is not and will not be construed as an acknowledgement by LeaseAccelerator of any fault or liability of LeaseAccelerator with respect to the Security Incident.
8.4 Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means LeaseAccelerator selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the LeaseAccelerator management console and secure transmission at all times.
9. LeaseAccelerator Certifications and Audits
9.1 LeaseAccelerator SOC Reports. In addition to the information contained in this DPA, upon Customer’s request, and provided that the parties have an applicable NDA in place, LeaseAccelerator will make available the following documents and information:
(i) the System and Organization Controls (SOC) 1 Report, the System and Organization Controls (SOC) 2 Report and the System (or the reports or other documentation describing the controls implemented by LeaseAccelerator that replace or are substantially equivalent to the SOC 1 and SOC 2).
9.2 LeaseAccelerator Audits. LeaseAccelerator uses external auditors to verify the adequacy of its security measures. This audit: (a) will be performed at least annually; (b) will be performed according to AICPA standards or such other alternative standards that are substantially equivalent to SSAE18/SOC1 and SOC 2; (c) will be performed by independent third party security professionals at LeaseAccelerator’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be LeaseAccelerator’s Confidential Information.
9.3 Audit Reports. At Customer’s written request, and provided that the parties have an applicable NDA in place, LeaseAccelerator will provide Customer with a copy of the Report so that Customer can reasonably verify LeaseAccelerator’s compliance with its obligations under this DPA.
10. Customer Audits
Customer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing LeaseAccelerator to carry out the audit described in Section 10. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending LeaseAccelerator written notice as provided for in the Agreement. If LeaseAccelerator declines to follow any instruction requested by Customer regarding audits or inspections, Customer is entitled to terminate this DPA If there is a material breach found as part of the audit.
11. Transfers of Personal Data
11.1.1 Customer Data may be processed within the LeaseAccelerator Network, including the EU (Frankfurt) Region, the US (N. Virginia) Region and the ANZ (Sydney) Region (each a “Region”) and by its Subprocessors in connection with the provision of the Services, in the United States and other jurisdictions (including but not limited to the United States, Canada, Australia, New Zealand, Switzerland, the United Kingdom, and India), subject to Section 11.1.2. LeaseAccelerator will not transfer Customer Data except as necessary to provide the Services initiated by Customer, or as necessary to comply with the law or binding order of a governmental body. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses.
11.1.2 To the extent Customer Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by LAS, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clause, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 90 days after the effective date of termination or expiration of this Agreement, LAS will make Customer Data available to Customer for export or download as provided in the Documentation. After such 90-day period, LAS will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
11.1.3 Customer consents to the transfer and processing of Customer Data by LAS in the performance of the Services to and in the United States, Canada, Australia and New Zealand and for support purposes Switzerland, the United Kingdom and India.
11.2 Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to Customer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if LeaseAccelerator has adopted an alternative recognised compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
12. Termination of the DPA
This DPA shall continue in force until the termination of the Agreement (the “Termination Date”).
13. Return or Deletion of Customer Data
The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this Section. For 90 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or regulatory body or it could subject LeaseAccelerator or its Affiliates to liability. No later than the end of this 90-day period, Customer will close all LeaseAccelerator accounts. LeaseAccelerator will delete Customer Data when requested by Customer by using the Service controls provided for this purpose by LeaseAccelerator.
14. Duties to Inform
Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by LeaseAccelerator, LeaseAccelerator will inform Customer without undue delay. LeaseAccelerator will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
15. Entire Agreement; Conflict
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 parties including the Agreement and this DPA, the terms of this DPA will control, except that the Service Terms will control over this DPA.
16. California Consumer Privacy Law (CCPA)
To the extent the CCPA is applicable, in connection with LeaseAccelerator’s provision of Services to Customer under the Agreement, if LeaseAccelerator receives any Customer Personal Data, then except as specifically provided herein, LeaseAccelerator will only Process Customer Personal Data for the purpose of LeaseAccelerator providing the Services. LeaseAccelerator will not retain, use, or disclose Customer Personal Data: (i) for any purpose other than to perform the Services or (ii) outside of the direct business relationship between Customer and LeaseAccelerator. LeaseAccelerator will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Customer Personal Data to any third party for monetary or other valuable consideration. LeaseAccelerator certifies that it understands the restrictions on its Processing of Customer Personal Information as set forth in this section and will comply with them.
Unless otherwise defined in the Agreement, all terms used in this DPA will have the meanings given to them below:
“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and all regulations promulgated thereunder.
“Data Protection Laws” means the GDPR and the CCPA.
“LeaseAccelerator Network” means LeaseAccelerator’s data center facilities, servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within LEASEACCELERATOR’s control and are used to provide the Services.
“LeaseAccelerator Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.
“Customer” means you or the entity you represent.
“Customer Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Services under Customer’s LeaseAccelerator accounts.
“EEA” means the European Economic Area.
“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).
“processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Security Incident” means a breach of LeaseAccelerator’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
Annex 1 – LEASEACCELERATOR Security Standards
Capitalised terms not otherwise defined in this document have the meanings assigned to them in the Agreement.
1. Information Security Program
LEASEACCELERATOR will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorised access to the LEASEACCELERATOR Network, and (c) minimise security risks, including through risk assessment and regular testing. LEASEACCELERATOR will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security. The LEASEACCELERATOR Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. LEASEACCELERATOR will maintain access controls and policies to manage what access is allowed to the LEASEACCELERATOR Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. LEASEACCELERATOR will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security
1.2.1 Physical Access Controls. Physical components of the LEASEACCELERATOR Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorised entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorised employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. LEASEACCELERATOR provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of LEASEACCELERATOR or its Affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. LEASEACCELERATOR also maintains electronic intrusion detection systems designed to detect unauthorised access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the Facilities by employees and contractors is logged and routinely audited.
2. Continued Evaluation
LEASEACCELERATOR will conduct periodic reviews of the security of its LEASEACCELERATOR Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. LEASEACCELERATOR will continually evaluate the security of its LEASEACCELERATOR Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
Annex 2 – Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The entity identified as “Customer” in the DPA (the “data exporter”)
LeaseAccelerator Services, LLC
10740 Parkridge Boulevard, Suite 701, Reston, VA 20191(the “data importer”)
each a “party”; together “the parties”,
HAVE AGREED on the following 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 Appendix 1.
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
Clause 2: Details of the transfer
The details of the transfer and the special categories of personal data where applicable are specified in Appendix 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
- 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
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 Appendix 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 Appendix 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 Appendix 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 Appendix 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
- 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 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
Clause 1: Purpose and scope
a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation for the transfer of personal data to a third country.
b) The Parties:
i. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
ii. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2: Effect and invariability of the Clauses
a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3: Third-party beneficiaries
a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
ii. Clause 8 – Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g);
iii. Clause 9 – Clause 9(a), (c), (d) and (e);
iv. Clause 12 – Clause 12(a), (d) and (f);
v. Clause 13;
vi. Clause 15.1(c), (d) and (e);
vii. Clause 16(e);
viii. Clause 18 – Clause 18(a) and (b);
b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4: Interpretation
a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5: Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6: Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 : Docking clause
a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
Section II – OBLIGATIONS OF THE PARTIES
Clause 8: Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
i. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
iii. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
iv. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9: Use of sub-processors
The data importer has the data exporter’s general authorization 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 calendar 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.
a) 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. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
b) 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.
c) 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.
d) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10: Data subject rights
a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
c) In fulfilling its obligations under paragraphs(a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11: Redress
a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
i. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
ii. refer the dispute to the competent courts within the meaning of Clause 18.
d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12: Liability
a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13: Supervision
a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
Section III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14: Local laws and practices affecting compliance with the Clauses
a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b) The Parties declare that in providing the warranty in paragraph(a), they have taken due account in particular of the following elements:
i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
iii. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
c) The data importer warrants that, in carrying out the assessment under paragraph(b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d) The Parties agree to document the assessment under paragraph(b) and make it available to the competent supervisory authority on request.
e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph(a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
f) Following a notification pursuant to paragraph(e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15: Obligations of the data importer in case of access by public authorities
a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Section IV – FINAL PROVISIONS
Clause 16: Non-compliance with the Clauses and termination
a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
ii. the data importer is in substantial or persistent breach of these Clauses; or
iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17: Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of _ the Grand Duchy of Luxembourg (specify Member State).]
Clause 18: Choice of forum and jurisdiction
a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
b) The Parties agree that those shall be the courts of the district of Luxembourg City. (specify Member State).
c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d) The Parties agree to submit themselves to the jurisdiction of such courts.
Name: The entity identified as “Customer” in the Order Form.
Address: The address for Customer specified in the Order Form or the Agreement.
Contact person’s name, position and contact details: The contact details associated with Customer’s account, or as otherwise specified in the Order Form or the Agreement.
Activities relevant to the data transferred under these Clauses: Data Importer provides:
Data Exporter employs and engages individuals and receives goods and services from companies that employ and engage individuals.
Signature and date: By using the LAS services to transfer Customer Data to Third Countries, the data exporter will be deemed to have signed this Annex I.
Role (controller / processor): Controller
- Name: “LAS” as identified in the Order Form.
- Address: The address for LAS specified in the Order Form or the Agreement.
- Contact person’s name, position and contact details: The contact details specified in the Order Form or the Agreement.
- Activities relevant to the data transferred under these Clauses:
- Data Importer (and its sub-processors) will process lease accounting and lease management data for the duration of the Agreement for the Data Exporter.
- Signature and date: By transferring Customer Data to Third Countries on Customer instructions, the data importer will be deemed to have signed this Annex I.
- Role (controller / processor): Processor
APPENDIX 2: DESCRIPTION OF TRANSFER
1.1 Categories of data subjects whose personal data is transferred
The Personal Data transferred concern the following categories of Data Subjects:
- Data Exporter‘s employees and its contractor’s employees having responsibilities related to lease origination, lease administration, lease accounting and/or for the leased asset from a fiduciary perspective (Asset Owner) and day-to-day user of the leased asset (Asset User); and
- The employees of Data Exporter and Data Exporter’s contract counterparts (e.g. lessors or leased asset vendors) having responsibilities related to lease origination (e.g. signatories and notice recipients).
1.2 Categories of personal data transferred
Data Importer shall only process such limited Personal Data as is necessary to reasonably provide the Services. The Personal Data processed concern the following categories of data: Name, contact details (may be limited to email address) and pre-defined role (e.g. Asset Owner and Asset User) of Data Subjects described in Section 3(a) and name, title, contact address and signatures of Data Subjects described in Section 3(b). This data may be anonymized or obfuscated by the Data Exporter.
No personal data transferred concern special categories of data of the data subjects.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal data is transferred in accordance with Customer’s instructions as described in Section 2 of the Addendum.
Nature of the processing
The Personal Data transferred will be subject solely for Data Importer and its Sub-Processors to perform its obligations and exercise its rights under the operative Agreement governing Processors services and may not be processed for any other purpose, absent written instructions from the Exporter.
Purpose(s) of the data transfer and further processing
To provide the Services
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Not applicable because the data exporter determines the duration of processing in accordance with the Order Form.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The subject matter, nature, and duration of the processing are described in Annex III of the Standard Contractual Clauses.
COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The data exporter’s competent supervisory authority will be determined in accordance with the GDPR.
ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organizational measures as well as the scope and the extent of the assistance required to respond to data subjects’ requests, are described in the Addendum.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.
The technical and organizational measures that the data importer will impose on subprocessors are described in the Addendum.
ANNEX III – LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
Services Sub Processor
Describe Products or Services provided by Sub Processor
|Sub Processor Contact Information|
|Amazon Web Services||Hosting|
Ashburn, Virginia Data Center USA
|Walkme, Inc.||Interactive online learning and virtual assistant||Leslie Carlucci, United States|
|salesforce.com, inc. (SFDC)||Service and Support Management||Salesforce Tower, 415 Mission Street, 3rd Floor, San Francisco, California, 94105 ATTN: VP, Worldwide Sales Operations|
|UserVoice||Service and Support Management|
234 Fayetteville St
Raleigh, NC 27601
(In scope applications and services)
|Service and Support Management|
345 Park Avenue
San Jose, CA 95110-2704
(In scope applications and services)
|Service and Support Management|
15010 NE 36th St Building 92. Redmond, WA 98052
|Zendesk||Service and Support Management|
989 Market St
San Francisco, CA 94103
|Concentrix – Mumbai, India||Auxiliary 24×7 support|
Sreeja Pillai| General Manager| FAO Services
Phone 080-41096000 | Extn 116185 | Mobile +91 8108033258
LeaseAccelerator Services Inc.
|EZLease, LLC, United States (See Agreement)|
LeaseAccelerator Services PTY LTD
|EZLease, LLC, United States (See Agreement)|
LeaseAccelerator India Private Limited
|LeaseAccelerator Services, LLC, United States (See Agreement)|
SUPPLEMENTARY ADDENDUM 1 TO LEASEACCELERATOR GDPR PROCESSING ADDENDUM
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
The purpose of this supplementary addendum (this “Addendum) is to outline supplemental measures that LeaseAccelerator Services, LLC (“LAS”) takes to protection Customer Data. This addendum supplements, but does not modify, the LAS GDPR Data Processing Addendum (the “LAS GDPR DPA”) or other agreement between Customer and LAS governing the processing of Customer Data pursuant to the GDPR. Unless otherwise defined in this Addendum all capitalized terms used in the Addendum will have the meanings given to them in the LAS GDPR DPA.
1. Requests for Customer Data
1.1 If LAS receives a valid and binding order (”Request”) from any governmental body (“Requesting Party”) for disclosure of Customer Data, LAS will use every reasonable effort to redirect the Requesting Party to request Customer Data directly from Customer.
1.2 If compelled to disclose Customer Data to a Requesting Party, LAS will:
a) Promptly notify Customer of the Request to allow Customer to seek a protective order or other appropriate remedy if LAS is legally permitted to do so. If LAS is prohibited from notifying Customer about the Request, LAS will use all reasonable and lawful efforts to obtain a waiver of prohibition, to allow LAS to communicate as much information to Customer as soon as possible; and
b) Challenge any overbroad or inappropriate request (included where such Request conflicts with the law of the European Union or applicable Member State Law).
1.3 If, after exhausting the steps described in Section 1.2, LAS remains compelled to disclose Customer Data to a Requesting Party, LAS will disclose only the minimum amount of Customer Data necessary to satisfy the Request.
2. Data Subject Rights. Nothing in this Addendum restricts Customer’s data subjects from exercising their rights under the GDPR.
3. Warranty. LAS agrees and warrants that it has no reason to believe that the legislation appliable to LAS or it’s subprocessors, including any country to which Customer Data is transferred either by itself or through a subprocessor, prevents it from fulfilling the instructions received from Customer and its obligations under this Addendum and the LAS GDPR DPA and that in the event of a change in this legislation which is likely to have substantial adverse effect on the warranties and obligations provided by the Addendum to the LAS GDPR DPA, LAS will promptly notify the change to Customer as soon as it is aware, in which case Customer is entitled to suspend the transfer of Customer Data and/or terminate the Agreement.
4. Entire Agreement; Conflict. Except as supplemented by this Addendum, the LAS GDPR DPA and the Agreement will remain in full force and effort. This Addendum together with the LAS GDPR DPA and the Agreement: (a) is intended by the parties as a final, complete and exclusive expression of the terms of their agreement, and (b) supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof. If there is a conflict between the LAS GDPR DPA and this Addendum, the terms of this Addendum will control.