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General Data Protection Agreement (GDPR)

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General Data Protection Agreement (GDPR)

Last Updated: 15 March 2024

This Data Processing Agreement between (i) the Client (hereinafter referred to as “Data Controller” or “Customer”) of ONE PART, and (ii) Datamatics Entity (hereafter referred to as “Datamatics” or “Data Processor”) of the Other Part, as identified more fully in the Job cards/Master Service Agreement/Statement of work (“Agreement”).

This Data Processing Agreement (“DPA”) covers the processing of personal data by Datamatics Business Solutions Limited and its affiliates. Datamatics is committed to protecting the personal information whilst striving to provide the efficient business experience to its clients. Datamatics Business Solutions Limited and its affiliates each individually referred to as “Datamatics”, “we” or “us”.

Under the GDPR and related laws, we have a legal duty to protect the personal information we collect on instructions of Customer or Data Controller.

This DPA is an addendum to the Customer Terms of Services or other written or electronic agreement including Job cards/Master Service Agreement/Statement of work (“Agreement”) between Datamatics and the Customer. This DPA shall constitute an integral part of the Agreement, executed in any form, whether electronically or by writing, between Datamatics and Customer for the performance of the services by Datamatics in terms of the Agreement (“Services”) the ambit of which sets out the understanding between the parties with respect to processing of Personal Data.

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).

For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.

Schedule 1 to this DPA sets out certain information regarding the processing of Personal Data as required by GDPR. Customer may make reasonable amendments to Schedule 1 by written notice to Datamatics from time to time, as Customer reasonably considers necessary to meet those requirements.

In the course of providing services to Customer pursuant to the Agreement, Datamatics may Process Personal Data on behalf of Customer and such Personal Data is subject to Data Protection Laws and Regulations. The parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

HOW THIS DPA APPLIES

If the Customer entity signing the Agreement is a party to the DPA, this DPA is an addendum to and forms part of the Agreement. In such case, the Datamatics entity that is party to the Agreement is party to this DPA.
If the Customer entity has executed an Order Form or Statement of Work with Datamatics pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form or Statement of Work, as the case may be, and applicable to the renewal of such Order Form or Statement of Work, as the case may be, and the Datamatics entity that is party to such Order Form or Statement of Work is party to this DPA.

This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in the Agreement (including any existing data processing addendum to the Agreement). In the event of any clash or inconsistency between the Agreement and this DPA, this DPA shall prevail.

  1. DEFINATIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Customer Data” means what is defined in the Agreement as “Customer Data”

“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“GDPR” means the Regulation (EU) 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, and repealing Directive 95/46/EC (General Data Protection Regulation) (EU GDPR); (ii) the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (the “UK GDPR”); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii) or (iii); in each case as may be amended or superseded from time to time;

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller.

“Datamatics Group” means Datamatics and its Affiliates engaged in the Processing of Personal Data.

“Sub-processor” means any Processor engaged by Datamatics or a member of the Datamatics Group. In this DPA, Datamatics India is the Sub-Processor. Datamatics Business Solutions Limited, a company incorporated under the laws of India, of PO Box 400093, Plot No. B-5, Part B Cross Lane, MIDC, Andheri (East) Mumbai, Maharashtra, India, 400093 (hereafter also referred to as “Datamatics India”).

“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

“SCCs” means: (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU SCCs”); and (ii) where the UK GDPR applies, standard data protection clauses adopted pursuant to Article 46(2)(c) or (d) of the UK GDPR (“UK SCCs”).

  1. BUSINESS PRACTICES AND ETHICS
  1. Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Datamatics is the Processor and that Datamatics or members of the Datamatics Group will engage Sub-processors pursuant to the requirements set forth in Section 2 “Sub-processors” below.
  2. Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
  3. Datamatics’ Processing of Personal Data. Datamatics shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Statement of Work/Job Cards/Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
  4. Details of the Processing. To the extent necessary to perform the Services pursuant to the Agreement, Datamatics shall process Personal Data. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
  5. Each party shall comply with its obligations under Data Protection Laws and Regulations in respect of any Personal Data it Processes under this DPA.
  6. Datamatics shall promptly notify Customer if it makes a determination that it cannot comply with its obligations under this DPA and in such event (and without prejudice to any other rights available to Customer) Datamatics shall work with the Customer and take all reasonable and appropriate steps to stop and remediate (if remediable) any processing until such time as the processing complies with the requirements of this DPA. Datamatics shall immediately cease (and procure all subcontractors) processing Personal Data if Customer determines that Datamatics has not or cannot correct any non-compliance in accordance with this sub-section 6 within a reasonable time frame.
  1. RIGHTS OF DATA SUBJECTS
  1. Data Subject Request. Datamatics shall, to the extent legally permitted, as promptly as is reasonably practicable, notify Customer if Datamatics receives a request in relation to the Personal Data from a Data Subject seeking to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Datamatics shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations in accordance with the timelines specified in the GDPR. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Datamatics shall, upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Datamatics is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations in accordance with the timelines specified in the GDPR. To the extent legally permitted, Customer shall be responsible for any costs arising from Datamatics’ provision of such assistance.
  1. DATAMATICS PERSONNEL
  1. Confidentiality. Datamatics shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements.
  2. Reliability. Datamatics shall take commercially reasonable steps to ensure the reliability of any Datamatics personnel engaged in the Processing of Personal Data.
  3. Limitation of Access. Datamatics shall ensure that Datamatics’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
  4. Data Protection Officer. Members of the Datamatics Group have appointed a data protection officer. The appointed person may be reached at [email protected].
  1. SUB-PROCESSORS
  1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Datamatics’ Affiliates may be retained as Sub-processors; and (b) Datamatics and Datamatics’ Affiliates respectively may engage the third-party Sub-processors in connection with the provision of the Services. Datamatics or a Datamatics Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
  2. List of Current Sub-processors and Notification of New Sub-processors. Datamatics shall make available to the Customer the current list of Sub-processors for the Services. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Sub processor Lists”). New Sub-processors may be appointed in accordance with Section 5.3.
  3. Objection Right for New Sub-processors. Datamatics shall be entitled to change the Sub-processor at any time, subject to giving the Customer [20] business days’ prior written notice and obtaining the customer’s written consent, such consent not to be unreasonably withheld or delayed. Customer may object to Datamatics’ use of a new Sub-processor by notifying Datamatics promptly in writing within ten (10) business days after receipt of Datamatics’ notice under this Section 5.3. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, Datamatics will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If DATAMATICS is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by Datamatics without the use of the objected-to new Sub-processor by providing written notice to Datamatics. Datamatics will refund Customer any prepaid fees covering the remainder of the term of such Agreement following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
  4. Liability. Datamatics shall be liable for the acts and omissions of its Sub-processors to the same extent Datamatics would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.  For the sake of clarification, Datamatics shall not be liable on account of data leak by any third party who is not a party to this DPA and/or Datamatics-Sub-processor data processing agreement.
  5. Performance by Datamatics India. Datamatics India is appointed as a sub-processor under this DPA. Datamatics shall cause Datamatics India to comply with the provisions of this DPA in connection with the performance of sub-processor’s obligations. Any breach by Datamatics India of any of Datamatics obligations under this Agreement, Customer may proceed directly against Datamatics India without any obligation to first proceed against Datamatics.
  1. SECURITY
  1. Controls for the Protection of Customer Data. Datamatics shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data. Datamatics regularly monitors compliance with these measures. In doing so, Datamatics shall be entitled to take into account:
    1. the nature, scope context and purposes of processing;
    2. the state of the art and costs of implementation; and
    3. the risk, likelihood and severity posed to the rights and freedoms of individuals.
  2. Third-Party Certifications and Audits. Datamatics has obtained the third-party certifications and audits. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Datamatics shall make available to Customer that is not a competitor of Datamatics (or Customer’s independent, third-party auditor that is not a competitor of Datamatics) a copy of Datamatics’ then most recent third-party audits or certifications, as applicable.
  1. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
  1. Datamatics maintains security incident management policies and procedures and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Datamatics or its Sub-processors of which Datamatics becomes aware (a “Customer Data Incident”). Datamatics shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Datamatics deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Datamatics’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.
  1. SECURITY REPORTS & INSPECTIONS
  1. Datamatics shall maintain records in accordance with ISO 27001 or similar Information Security Management System (“ISMS”) standards. Upon request, Datamatics shall provide copies of relevant external ISMS certifications, audit report summaries and/or other documentation reasonably required by the Customer to verify Vendor’s compliance with this DPA.
  2. While it is the parties’ intention ordinarily to rely on Datamatics’ obligations set forth in sub-section 1 to verify Datamatics’ compliance with this DPA, Customer (or its appointed representatives) may require Datamatics to contribute to audits, including inspections as it relates to Personal Data provided by Customer, subject to reasonable prior notice where Customer considers it necessary or appropriate (for example, without limitation, where Customer has reasonable concerns about Datamatics’ data protection compliance, following a Security Incident or following instruction from the ultimate Controller or a data protection authority). Datamatics may redact or not provide information as it may relate to other clients of Datamatics, or may be Confidential Information of Datamatics as defined in the Agreement.
  1. RESTRICTED TRANSFERS

9.1 The parties agree that, when the transfer of Personal Data from Datamatics to Customer is a Restricted Transfer, it shall be subject to the appropriate SCCs as follows:

  1. in relation to data that is protected by the EU GDPR, the EU SCCs will apply completed as follows:
  1. Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this Addendum.
  2. Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.
  1. For each module listed above, where applicable the following applies:
    1. in Clause 7, the optional docking clause will apply;
    2. in Clause 9, Option 2 (general written authorization) will apply, and the time period for prior notice of sub-processor changes shall be as set out in Clause 5.3 of this DPA;
    3. in Clause 11, the optional language will not apply;
    4. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
    5. in Clause 18(b), disputes shall be resolved before the courts of Ireland;
    6. Annex I of the EU SCCs shall be deemed completed with the information set out in Annex I to this Agreement; and
    7. Annex II of the EU SCCs shall be deemed completed with the information set out in Annex II to this Agreement;
  1. in relation to data that is protected by the UK GDPR, the UK SCCs will apply completed as follows:
    1. Appendix 1 of the UK SCCs shall be deemed completed with the information set out Annex I to this Agreement; and
    2. Appendix 2 of the UK SCCs shall be deemed completed with the information set out in Annex II to this Agreement; and
  1. in the event that any provision of this Agreement contradicts, directly or indirectly, the Standard Contractual Clauses as described in Annexure III, the Standard Contractual Clauses shall prevail.

9.2 Supplementary Measures. In respect of any EU GDPR Transfer or EK GDPR Transfer, the following supplementary measures shall apply.

  1. As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”);
  2. If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Datamatics shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Datamatics may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Datamatics shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Datamatics is legally prohibited from doing so. Datamatics shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests; and
  3. The Data Exporter and Data Importer will meet regularly to consider whether:
    1. the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;
    2. additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and
    3. it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities.
  1. If Data Protection Laws and Regulations require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws and Regulations.
  2. If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws and Regulations.
  1. RETURN AND DELETION OF CUSTOMER DATA
  1. Datamatics shall return Customer Data to Customer upon completion of purpose as agreed upon between the Parties under this Agreement or to the extent allowed by applicable law. However, the information of any Customer Data will not be retained more than 7 years. Datamatics further agree to delete Customer Data in accordance with the procedures and timeframes as per the mutually agreed process and timelines
  1. AUTHORIZED AFFILIATES
  1. Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Datamatics and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 11 and Section 12. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
  2. Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Datamatics under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
  3. Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with Datamatics, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
    1. Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Datamatics directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 11.3.2, below).
    2. The parties agree that the Customer that is the contracting party to the Agreement shall, subject to providing reasonable prior written notice of no less than 10 business days, be entitled to carry out an on-site audit at the relevant Datamatics site of the procedures and/or documentation relevant to demonstrating the protection of Personal Data under GDPR provided that Customer shall not exercise audit right more than once per year. In carrying out such an audit, the Customer shall take all reasonable measures to limit any impact on Datamatics and its Sub-Processors by combining, to the extent reasonable possible, several audit requests carried out on behalf of different Authorized Affiliates into one single audit. Datamatics may charge a reasonable fee to the Customer for enabling inspections.
  1. LIMITATION OF LIABILITY
  1. Datamatics’ and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates of the Customer and Datamatics, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, Datamatics’ and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules. For the sake of clarification, Datamatics shall not be liable for any damages/claims/liability arising on account of data leak caused by any third party who is not a party to this Data Processing Addendum and/or the Datamatics-Sub-Processer Data processing agreement.
  1. EUROPEAN SPECIFIC PROVISIONS
  1. GDPR. Datamatics will Process Personal Data in accordance with the GDPR requirements directly applicable to Datamatics’ provision of its Services.
  2. Assistance to Customer to comply with the GDPR. Upon Customer’s request, Datamatics shall provide Customer with reasonable cooperation and assistance needed to help fulfil Customer’s obligation under the GDPR, taking into account Datamatics’ processing of Personal Data and the information available to it. Datamatics shall be entitled to charge a reasonable fee for such assistance, based on its then current standard rates.
  1. POLICY CHANGES

We may amend this Policy from time to time, so we encourage you to check it periodically. If we make material changes, we will endeavor to provide you with appropriate notice before such changes take effect.

  1. INSURANCE COVER

Datamatics shall at all times of the Agreement maintain (and evidence upon request to the Customer) appropriate cyber insurance coverage.

  1. GOVERNING LAW

This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

  1. GENERAL PROVISIONS
  1. The legal entity agreeing to this DPA as Data Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Data Controller.
  2. Should any provision of this DPA be invalid or unenforceable, the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amend as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) constructed in a manner as if the invalid or unenforceable part had never been contained therein.
  1. ANNEXES

The following annexes form an integral part of this Agreement:

Schedule 1: Details of the Processing

Annex I: Data Processing Description

Annex II: Technical and organizational measures

Annex III: Standard Contractual Clauses

SCHEDULE 1 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing

Datamatics will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.

Duration of Processing

Subject to Section 10 of the DPA, Datamatics will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Data Subjects

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the categories of data subjects as referred to in the Agreement.

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the categories of Personal Data as referred to in the Agreement.

Annex I
Data Processing Description

This Annex I forms part of the Agreement and describes the processing that Datamatics (as the processor) will perform on behalf of Customer (as the controller).

  1. LIST OF PARTIES

Controller(s) / Data exporter(s): [Identity and contact details of the controller(s) /data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
Name:
Customer
Address:
Refer Agreement
Contact person details:
Refer Agreement
Activities relevant to the data transferred under these Clauses:
Refer Agreement
Signature and date:
This Annex I shall automatically be deemed executed when the DPA is executed by Customer.
Role (controller/processor):
Controller

Controller(s) / Processor(s) / Data importer(s): [Identity and contact details of the processor(s) /data importer(s), including any contact person with responsibility for data protection]
Name:
Datamatics
Address:
Refer Agreement
Contact person details:
[email protected]
Activities relevant to the data transferred under these Clauses:
Refer Agreement
Signature and date:
This Annex I shall automatically be deemed executed when the DPA is executed by Datamatics.
Role (controller/processor):
Processor
  1. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
Refer Agreement
Categories of personal data transferred::
Refer Agreement
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:
Not Applicable
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis):
Continuous
Nature of the processing:
Processing includes Using and Accessing the Personal Data. Refer Agreement
Purpose(s) of the data transfer and further processing:
The purpose of the processing is to provide the Services to Customer, in accordance with the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
The processing will continue ongoing for the period during which the Services are being provided to Customer, in accordance with the Agreement
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
Datamatics Business Solutions Limited. The data will be processed in accordance with this Agreement. Processing will take place in India.
  1. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance (e.g. in accordance with Clause 13 SCCs)
Where the EU GDPR applies, the competent supervisory authority shall be determined in accordance with Clause 17 of these Standard Contractual Clauses. Where the UK GDPR applies, the UK Information Commissioner’s Office shall be the competent supervisory authority.

Annexure II

Description of the Technical and Organizational Security Measures implemented by the Data Importer

The following includes the information required by Annex II of the EU SCCs and Appendix 2 of the UK SCCs.

The technical and organizational measures include the following measures:

  • Measures of encryption of personal data
  • Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
  • Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
  • Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
  • Measures for user identification and authorization
  • Measures for the protection of data during transmission
  • Measures for the protection of data during storage
  • Measures for ensuring physical security of locations at which personal data are processed
  • Measures for ensuring events logging
  • Measures for ensuring system configuration, including default configuration
  • Measures for internal IT and IT security governance and management
  • Measures for certification/assurance of processes and products
  • Measures for ensuring data minimization
  • Measures for ensuring data quality
  • Measures for ensuring limited data retention
  • Measures for ensuring accountability
  • Measures for allowing data portability and ensuring erasure

Annexure III

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1
Purpose and scope

  1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)1 for the transfer of personal data to a third country.
  2. The Parties:
    1. 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.1. (hereinafter each “data exporter”), and
    2. 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.1. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).
  1. These Clauses apply with respect to the transfer of personal data as specified in Annex I.2
  2. 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

  1. 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.
  2. 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

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
    3. Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
    4. Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
    5. Clause 13;
    6. Clause 15.1(c), (d) and (e);
    7. Clause 16(e);
    8. Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
  1. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4
Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. 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 – Optional
Docking clause

  1. 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.1.
  2. Once it has completed the Appendix and signed Annex I.1, 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.1.
  3. 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 organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

  1. 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.
  2. 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.2, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand 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.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical 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, including during transmission, where the purpose of processing can be fulfilled in that manner. 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.
  2. 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.
  3. 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.
  4. 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.2.

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 Union4 (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:

  1. 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;
  2. 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;
  3. 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
  4. 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

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. The data importer shall not sub-contract any of its processing activities performed on behalf of the data exporter under these Clauses to a sub-processor without the data exporter’s prior specific written authorisation. The data importer shall submit the request for specific authorisation at least [Specify time period] prior to the engagement of the sub-processor, together with the information necessary to enable the data exporter to decide on the authorisation. The list of sub-processors already authorised by the data exporter can be found in Annex III. The Parties shall keep Annex III up to date.
  2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects.8 The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
  3. 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.
  4. 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.
  5. e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10
Data subject rights

  1. 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.
  2. 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.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11
Redress

  1. 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.
  2. 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.
  3. 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:
    1. 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;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  1. 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.
  2. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  3. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13
Supervision

  1. [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.

  2. 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

  1. 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. 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;
    2. 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;
    3. 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.
  1. 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.
  2. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  3. 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).
  4. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15
Obligations of the data importer in case of access by public authorities

15.1 Notification

  1. 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:
    1. 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
    2. 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.
  1. 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.
  2. 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.)
  3. 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.
  4. 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

  1. 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).
  2. 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.
  3. 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

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. 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;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. 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.
  1. 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.
  2. 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 laws 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 Ireland.

Clause 18
Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of Ireland.
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.

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