Legal & Privacy
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Data Processing Agreement (DPA)
Article 1. Definitions
1.1 In this Data Processing Addendum, capitalized words and expressions, whether in single or plural, have the meaning specified as set out below:
Annex: means an Annex to this Data Processing Agreement, which forms an integral part of
Controller: means the Customer; where the Processing of Personal Data is concerned, the Customer classifies as a Controller within the meaning of Section 4(7) of the General Data Protection Regulation (“GDPR”); Customer may include the individual Property.
Data Processing Agreement: means the present Data Processing Agreement, which forms an integral part of the Agreement.
Processor: means Ireckonu; where the Processing of Personal Data is concerned, Ireckonu qualifies as a Processor within the meaning of Section 4(8) GDPR;
Personal Data: means all information relating to an identified or identifiable natural person as referred to in Article 4(1) of the GDPR or as related terms (e.g., personal information) are defined in applicable data protection laws.
Process: as well as conjugations of this verb: the processing of Personal Data as referred to in Section 4(2) GDPR.
Security Incident: means any actual or reasonably suspected (a) accidental, unauthorized or unlawful loss, destruction or theft of Controller Personal Data; (b) unauthorized or unlawful use, disclosure, alteration, encryption, acquisition of or access to, or other unauthorized Processing of Controller Personal Data; or (c) unauthorized access to, use of, inability to access, or malicious infection of, Controller or Processor information systems that reasonably may be expected to compromise the privacy, confidentiality or security of Controller Personal Data.
Security Measures: means the technical and organizational measures taken by Ireckonu to adequately protect the processed Data.
Standard Contractual Clauses: means Module 2 of the 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 from June 4th 2021, as applicable and as enclosed to this Data Processing Agreement in Annex 4.
Sub-processor: means the sub-contractor hired by the Processor, that Processes Personal Data in the context of this Processor’s Agreement on behalf of the Controller, as referred to in Article 28(4) of the GDPR.
1.2 The Parties – partly in implementation of the provisions of Section 28(3) GDPR- wish to document a number of conditions in the present Data Processing Agreement which apply to their relationship in the context of the aforesaid activities on the instructions and for the benefit of the
1.3 The provisions of the Agreement apply in full to this Data Processing Addendum. In case provisions with regard to the Processing of Personal Data are included in the Agreement, the provisions of this Data Processing Agreement prevail.
2.1 The Controller (Customer) and the Processor (Ireckonu) have concluded the present Data Processing Agreement for the Processing of Personal Data in the context of the An overview of the type of Personal Data, categories of data subjects and the purposes of Processing, is included in Annex 1.
2.2 The Controller guarantees that the Processing of Controller Personal Data under this Agreement is in compliance with all Controller’s obligations under the applicable privacy legislation (including GDPR). Controller will indemnify and hold harmless Processor against any and all claims of third parties including those of authorities including but not limited to the data protection, resulting in any way from not complying with this guarantee.
2.3 The Processor undertakes to Process Personal Data only on the documented instructions of the Company (including to the extent necessary to perform the Services as set out in this Addendum and the Agreement). The Processor guarantees that it will not use the Personal Data for any other purpose without the Controller’s express written consent unless a legal provision requires the Processor to do so. In such case, the Processor shall immediately inform the Controller of that legal requirement before Processing, unless that law prohibits such Information on import grounds of public interest.
2.4 The Processor shall not sell, retain, use or disclose the Personal Data for any purpose other than for the specific purpose of performing the Services.
2.5 At the Controller’s request, the Processor shall provide the Personal Data to the Controller in a generally accepted
3.1 The Processor will, taking into account the nature of the Processing and insofar as this is reasonable possible, assist the Controller in ensuring compliance with the obligations pursuant to the GDPR and take appropriate technical and organizational measures to ensure a level of security for Personal Data appropriate to the risk. These measures will guarantee an appropriate level of security, taking into account the state of the art and the costs of implementation, in view of the risks entailed by Personal Data Processing and the nature of the data to be The Processor will in any case take measures to protect Personal Data against accidental or unlawful destruction, accidental or deliberate loss, forgery, unauthorized distribution or access, or any other form of unlawful Processing. Annex 2 describes the technical and organizational measures taken by the Processor. Controller acknowledges that these measures are appropriate and in accordance with the GDPR.
3.2The Processor and the Controller will periodically evaluate the measures mentioned in Annex 2. Processor reserves the right to change its Security Measures as long these new Security Measures remain conform and compliant with GDPR regulations, and do not degrade the security of Personal Data.
Article 4. Confidentiality
4.1 Except as provided for in Article 6, the Processor will not disclose Personal Data to other third parties, unless the Controller has given its explicit prior written consent.
4.2 The Processor will establish that its employees that are involved in the execution of the Agreement are bound by confidentiality regarding the Personal Data. This applies accordingly with respect to its Sub-
Article 5. Personal Data Processing Outside Europe
5.1 The Parties enter into and agree to be bound by the provisions of the Standard Contractual Clauses for the transfer of Controller Personal Data of residents of the European Economic Area (“EEA”) to Processor, unless the Processor Processes such Controller Personal Data solely from within the EEA, or another territory recognized under the GDPR as providing adequate protection for Personal Data. References in the Standard Contractual Clauses to “data exporter” shall be to the Controller and to “data importer” shall be to the Processor.
5.2 The Parties further agree that for the purpose of transfer of Personal Data between the Controller (data exporter) and the Company (data importer), the Standard Contractual Clauses are completed as follows:
- Clause 7 (Docking Clause) of the Standard Contractual Clauses shall not be applicable.
- In Clause 9, option 2 shall apply and the time period specified therein is 30 days.
- In Clause 11, data subjects shall not be able to lodge a complaint with an independent dispute resolution body.
- In Clause 17, option 1 shall apply. The Parties agree that the clauses shall be governed by the law of the Netherlands.
- In Clause 18(b) the Parties choose the competent courts of the Netherlands as their choice of forum.
- Appendix 1 and Appendix 2 to the Standard Contractual Clauses, are Annex I and II to this DPA respectively.
6.1 The Processor is entitled to outsource the implementation of the Processing to its current Sub-processors as listed in Annex 3. The Processor will inform the Controller of any intended changes concerning the addition or replacement of Sub-processors. The Controller will have thirty (30) working days to object to such changes. The Processor will respond to the objection within ten (10) working Where Processor notifies Controller of its intention to continue to use the Sub-processor in these circumstances, Controller may, if Controller continues to object to the retention of the sub-processors, terminate the affected portion of the Agreement by providing written notice to Processor. If Controller does not provide such written notice, it shall be deemed to have accepted the appointment of the Sub-processor. In the event Controller terminates the affected portion of the Agreement as described, Controller will be responsible solely for the costs of Services already provided.
6.2 The Processor has established that its Sub-processors are bound by similar obligations including the security measures stated in this Data Processing Agreement related to the Processing of Personal Data, except 3 below.
6.3 Concerning Microsoft Azure as public cloud provider, and if applicable any Sub-processors engaged by Microsoft Azure, Parties agree that the standard (data processing) agreement as provided by Microsoft Azure, which can be found here: https://docs.microsoft.com/en-us/legal/gdpr, is compliant with the applicable privacy legislation (including GDPR). The Controller accepts and agrees that said terms also apply to Controller in relation to this Agreement and the Processing of Controller Personal Data and, therefore, Processor may invoke these terms against the Controller to the extent it concerns the sub-processing by Azure.
Article 7. Personal Data Breach
7.1 In the event the Processor becomes aware of any Security Incident that may have a significant impact on the protection of Personal Data, (a) the Processor will notify the Controller without undue delay and (b) will take all reasonable measures to prevent or limit (further) violation of the GDPR.
7.2 The Processor will, insofar as reasonable, provide all reasonable cooperation requested by the Controller in order for the Controller to comply with its legal obligations relating to the identified incident.
The Processor will insofar as reasonable, assist the Controller with the Controller’s notification obligation relating to the Personal Data to the Data Protection Authority and/or the data subject, as meant in Article 33(3) and 34(1) of the GDPR. The Processor is never held to report a personal data breach with the Data Protection Authority and/or the data subject.
7.3 The Processor will not be responsible for the notification obligation to the relevant supervisor and/or data subjects, as required by Article 33 and 34 of the GDPR; however, this Article 7.4 shall not affect any liability or indemnity of the Processor under Article 9 of the Agreement.
8.1 The Processor will provide all reasonable cooperation to the Controller in fulfilling its obligation pursuant to applicable data protection laws to respond to requests for exercising rights of data subjects, in particular the right of access (Article 15 of the GDPR), rectification (Article 16 of the GDPR), erasure (Article 17 of the GDPR), restriction (Article 18 of the GDPR), data portability (Article 20 of the GDPR) and the right to object (Articles 21 and 22 of the GDPR) within ten (10) days of receiving a request for such assistance from the Controller. The Processor will immediately forward all complaints or requests from a data subject with regard to the Processing of Personal Data to the Controller, as the Controller is responsible for handling the
8.2 The Processor will provide all reasonable cooperation to the Controller in fulfilling its obligation pursuant to the GDPR to carry out a data protection impact assessment (Articles 35 and 36 of the GDPR).
8.3 The Processor will provide the Controller with all the information reasonably necessary to demonstrate that the Processor fulfills its obligations under the Furthermore, the Processor will – at the request of the Controller, and subject to prior written agreement on the scope – enable and contribute to audits, including inspections by the Controller or an independent authorized auditor. In case the Processor is of the opinion that an instruction relating to the provisions of this paragraph infringes the GDPR or other applicable data protection legislation, the Processor will inform the Controller immediately.
Article 9. Termination And Miscellaneous
9.1 With regard to the termination under this Data Processing Agreement the specific provisions of the Agreement apply. Without prejudice to the specific provisions of the Agreement, the Processor will, at the first request and for the risk of the Controller, delete or return all the Personal Data, and delete all existing copies, unless the Processor is legally required to store (part of) the Personal Data. The Processor is entitled to charge any costs associated with the cooperation with the Controller. The Controller will adequately inform the Processor about the (statutory) retention periods that apply to the Processing of Personal Data by the Processor.
9.2 The obligations laid down in this Processor’s Agreement which, by their nature, are designed to continue after termination will remain in force also after the termination of this Processor’s
9.3 The choice of law and competent court comply with the applicable provisions of the
- LIST OF PARTIES
- Name: [CUSTOMER]
Contact person’s name, position and contact details:
Activities relevant to the data transferred under these Clauses: Data Exporter selects and transfers the data specified in this Annex 1 in relation to the purchase of the Software-as-a-Service Platform provided by the Data Importer and related services included under this Data Processing Agreement.
Signature and date:
Role (controller/processor): Controller
- Name: Ireckonu B.V.
Address: Olympisch Stadion 42, 1076 DE, Amsterdam, the Netherlands
Contact person’s name, position and contact details: Bob Niekerk, Chief Financial Officer and Data Protection Officer, bob@Ireckonu.com.
Activities relevant to the data transferred under these Clauses: Ireckonu processess the imported data from the Controller for the purpose of presenting unified data in Ireckonu’s SaaS Middleware platform (CORE) and connecting across various third-party hospitality systems used by the Controller. Ireckonu analyses, filters and groups the data for the purpose of providing the services related to its SaaS customer data platform (IKnowU).
Ireckonu processess the data imported from Controller in connection with Controller’s use of Processor’s Software-as-a-Service platform and related products to provide the services purchased by the Controller, including any extension, addenda and renewals of such purchases, and as otherwise permitted by the service agreements between the Parties.
Signature and date:
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
- Categories of data subjects
The categories of data subjects whose personal data is transferred are the following:
i. Hotel guests
ii. Hotel visitors
iv. Hotel staff.
- Categories of personal data
The categories of personal data transferred between Controller and Processor are:
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Date of Birth
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Date of Birth
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
|Confidential – GDPR
- Sensitive personal data
The data processing activities that require personal data to be transferred between Controller and Processor do not include sensitive personal data.
- Time of transfer and processing of personal data
The personal data is transferred between the Controller and the Processor on a continuous basis.
- Nature of the processing
Processor collects, sorts, analyses, filters, unifies, merges and deduplicates the imported data from the Controller in connection with the Controller’s use of Processor’s Software-as-a-Service platform to provide the services purchased by the Controller and as otherwise permitted by the service agreements between the Parties.
- Purpose of data transfer and processing
The purposes of the data transfer and further processing include the following:
i. Guest reservation
ii. Guest experience
iii. Guest orders
vi. Management information to optimize hotel operations
- Duration of processing and retention of personal dataThe personal data will be retained for the duration of the delivery of the services related to the Ireckonu products/software ordered by Controller for an indefinite period of time, until the Parties expressly terminate the Agreements that form a basis for this delivery.
- Subject matter, nature and duration of the processing for transfers to (sub)-processors8.1 Transfers of personal data to sub-processor Microsoft Azure takes place solely for the hosting of the Processor’s services. Microsoft Azure does not have access to the Personal Data as these are encrypted. The data is transferred on a continuous basis as updates are taking place in real-time. The locations where the processing of the personal data will occur by Microsoft Azure, are subject to the region of choice of the Controller. Microsoft is GDPR compliant. For detailed description of the processing of data by Azure, see the following: https://docs.microsoft.com/en-us/legal/gdpr.
8.2 Transfer of personal data to sub-processor SendGrid takes place to facilitate the sending of transactional emails and marketing communication by the Controller through the Processor’s SaaS platform. The data is transferred on a continuous basis as updates are taking place in real-time. SendGrid data centers outside the European Economic Area (EEA) are located in the following locations: Las Vegas, Nevada, USA; Chicago, Ilinois, USA; San Jose, California, USA; Herndon, Virginia, USA; Washington D.C., USA; London, UK; India, and Tokyo, Japan.
- COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority in accordance with Clause 13 is the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) in The Netherlands.
ANNEX 2 TECHNICAL AND ORGANISATIONAL SECURITY MEASURES
This Annex describes the technical and organizational security measures and controls implemented by Ireckonu to protect Personal Data and ensure the ongoing confidentiality, integrity and availability of its systems.
Ireckonu may change these measures from time to time. This may mean that individual measures are replaced by new measures that serve the same purpose or deal with the same risks without materially diminishing the security level. You can request the latest version of this document at secure@Ireckonu.com. This document was last updated on 1-9-2020 and last reviewed for accurateness on 6-3-2023.
- Organization of Information Security
Ireckonu has an information security function that has been ratified and is supported by business leadership and Ireckonu ensures that its Personnel are competent in information security.
- Ireckonu employs Personnel responsibility for information security.
- The Ireckonu information security function reports directly to an Ireckonu board member independent to operational management.
- Ireckonu has a comprehensive set of information security policies, approved by senior management and disseminated to all Personnel.
- Ireckonu security policies are reviewed at least annually and updated when needed.
- All Ireckonu Personnel have signed legally reviewed confidentiality agreements that apply during and post-engagement.
- Failure of Personnel to follow information security policies can be treated as a disciplinary matter and lead to sanctions, including dismissal.
- All Ireckonu Personnel are given training in information security at least annually.
- Information security is a basic design and architectural principle for the Ireckonu service.
- Ireckonu is committed to continual improvement of its security.
- Information Security Management System
Ireckonu has an ISMS (Information Security Management System) in place to evaluate risks to the security of Personal Data, to manage the assessment and treatment of these risks and to continually improve its information security.
- Ireckonu has deployed an incident management system and audit ISMS to manage security professionally. Ireckonu uses the ISO/IEC 27001:2013 framework to align with international standard of information security as part of the ISMS.
- ISO/IEC 27001:2013 is an international standard that specifies the requirements for establishing, implementing maintaining and continually improving an ISMS including the assessment and treatment of information security risks.
- Physical Access
Physical access to Personal Data is protected.
- Ireckonu runs the Ireckonu Service from an ISO 27001 certified, professional, third-party production data center (Microsoft Azure) with a defined and protected physical perimeter, strong physical controls including access control mechanisms, controlled delivery and loading areas, surveillance and twenty-four (24) hour, seven (7) day per week, three hundred sixty- five (365) day per year guards. Only authorized representatives have access to the data center premises.
- Azure and the underlying Microsoft Cloud and Infrastructure Operations (“MCIO”) physical environments employ security frameworks that span multiple standards, including the ISO 27000 family of standards, NIST 800, and others.
- Our security framework, based on ISO 27001/27018, enables customers to evaluate how Microsoft meets or exceeds its security standards and implementation guidelines.
- ISO 27001 defines how to implement, monitor, maintain, and continually improve the Information Security Management System (“ISMS”).
- The Microsoft Information Security Policy also aligns with ISO 27002, augmented with requirements specific to Azure. ISO 27002 is not a certification but provides a suggested set of suitable controls for the Information Security Management System.
- Power and telecommunications cabling carrying Personal Data or supporting information services at the production data center are protected from interception, interference and damage.
- The production data center and its equipment are physically protected against natural disasters, malicious attacks and accidents.
- Equipment at the production data center is protected from power failures and other disruptions caused by failures in supporting utilities and is correctly maintained.
- Equipment or disk media containing Personal Data (including faulty or end of life disks) are not physically removed from the production data center unless securely erased prior to such removal or being transferred securely for destruction at a third-party site.
- When Personal Data is copied electronically by Ireckonu outside the production data center, appropriate physical security is maintained, and the data is Strongly Encrypted at all times.
- System Access
Ireckonu data processing systems are used only by approved, authenticated users.
- Access to Ireckonu internal systems is granted only to Ireckonu Personnel and/or to permitted employees of Ireckonu’s subcontractors and access is strictly limited as required for those persons to fulfil their function.
- All users access Ireckonu systems with a unique identifier (user ID).
- Ireckonu has established a password policy that prohibits the sharing of passwords and requires passwords to be changed on a regular basis and default passwords to be altered. All passwords must fulfil defined minimum requirements and are stored in encrypted form. Each computer has a password- protected screensaver.
- A second factor of authentication is required for access to online systems containing Personal Data.
- Ireckonu has a thorough procedure to deactivate users and their access when a user leaves the company or a function.
- An Intrusion Detection System (“IDS”) or Intrusion Prevention System (“IPS”) is deployed at the production data center to help identify potential inappropriate access.
- For Customer access to the system, Ireckonu provides a wide range of authentication capability including the ability for Customers to set their own password policies and support for SAML.
- Data Access
Persons entitled to use data processing systems gain access only to the Personal Data that they are authorized to access.
- Ireckonu restricts Personnel access to files and programs on a “need-to-know” basis.
- Personnel training covers access rights to and general guidelines on definition and use of Personal Data.
- Where appropriate and practical, Ireckonu employs data minimization and pseudonymization to reduce the likelihood of inappropriate access to Personal Data.
- The production environment for the Ireckonu Services is separate from the development and testing environment, and development Personnel do not have access to the production environment.
- Ireckonu uses up-to-date anti-malware software on all appropriate computers and servers.
- Ireckonu uses well-configured firewalls for the Ireckonu Services.
- The Ireckonu Service contains versatile capabilities to set roles and permissions to let Customers manage authorizations to set that Personal Data is only made available to appropriate users when needed.
- Ireckonu ensures that appropriate Personnel receive alerts and notifications from system software vendors and other sources of security advisories and installs system software patches regularly and efficiently.
- Data Transmission
Prevent Personal Data from being read, copied, altered or deleted by unauthorized parties during transfer.
- Customer access to the OnDemand Service is protected by TLS 1.2 or higher.
- Ireckonu uses Strong Encryption for all other transmission of Personal Data outside the production data center.
- Any Personal Data stored outside the production data center is protected by Strong Encryption at rest.
- The Customer is responsible for the security of Personal Data once it has been transmitted from Ireckonu to the Customer including when downloaded or accessed by Customer users.
- Confidentiality and Integrity
Personal Data remains confidential throughout processing and remains intact, complete and current during processing activities.
Ireckonu has a defense in depth approach to ensuring confidentiality and integrity and many of the measures in other sections of this document safeguard confidentiality and integrity. Some other measures that contribute include:
- Ireckonu has a central, secured repository of product source code, which is accessible only to authorized Personnel.
- Ireckonu has a formal product development security policy and uses a Secure Development Lifecycle (“SDLC”) that includes a wide range of security testing and a flaw reporting and management procedure.
- Security testing includes code review and employing static code analysis tools on a periodic basis to identify flaws.
- All changes to software on the Ireckonu Service are via a controlled, approved release mechanism within a formal change control program that tracks, documents, tests, and approves change requests prior to implementation.
- All encryption and other cryptographic functionality used within the Ireckonu Service (except for interfaces to third parties) that has a security purpose uses industry standard encryption.
Personal Data is protected from accidental destruction or loss, and there is timely access, restoration or availability to Personal Data in the event of an incident.
- Ireckonu uses the Microsoft Azure standards of redundancy at the production data center so that an availability failure of a single system or component is unlikely to impact general availability. The level or type of redundancy shall be selected by Customer. The cost of the redundancy shall be part of the “Runtime Costs”, as described in the Sales Order.
- The production data center has multiple power supplies, generators on-site and with battery back- up to safeguard power availability to the data center accordance Microsoft Azure standards.
- The production data center has multiple access points to the Internet to safeguard connectivity accordance Microsoft Azure standards.
- The production data center is monitored twenty-four (24) hour, seven (7) day per week, three hundred sixty-five (365) day per year for power, network, environmental and technical issues accordance Microsoft Azure standards.
- Ireckonu will use the Microsoft Azure standards to conduct real time, encrypted back-up copies of Customer Data and these are stored in a geographically separate location to the main data center. Back-ups shall be stored in a Microsoft Azure location which is ISO 27001 certified in accordance with Microsoft Azure standards.
- Ireckonu has a system in place to ensure that any failures of backup to operate correctly are flagged and dealt with.
- Ireckonu performs restore tests from those backups at least annually.
- Ireckonu has a business continuity plan in place which is regularly updated.
- Ireckonu tests elements of its business continuity plan regularly and learns from the results of such tests.
- Job Control
Personal Data processed on a Customer’s behalf is processed solely in accordance with the relevant agreement and related instructions of the Customer including in the use of sub-processors.
- Ireckonu acts as data processor with respect to Personal Data and stores and processes Personal Data in order to operate the Ireckonu Service under the instructions of Customer.
- Ireckonu does not access Customer Personal Data, except to provide services to the Customer which Ireckonu is obligated to perform in support of the Customer experience including for general operation and monitoring of the Ireckonu Service, troubleshooting and maintenance purposes, for security reasons, as required by law, or on request by Customer.
- Ireckonu uses a limited number of sub-processors to help it provide the Ireckonu Service including a small number of third-party companies and some individual (natural person) subcontractors. Ireckonu only sub-processor is Microsoft Azure and the Microsoft privacy statement is included in the provided link – https://privacy.microsoft.com/en-us/Privacy.
- Ireckonu US affiliate, Ireckonu the Americas Inc. has adopted and is compliant with the GDPR and applicable Standard Contractual Clauses (Annex 4 to the Data Processing Agreement).
- Ireckonu has contracts with Microsoft directly, which has EU Standard Contractual Clauses (Processors) in place – https://azure.microsoft.com/en-us/support/legal/subscription-agreement-nov- 2014/.
- Data Separation
Personal Data collected for different purposes is processed separately.
- Ireckonu uses a multi-tenant architecture to achieve logical separation of Personal Data originating from multiple Customers. In each step of the processing, Personal Data received from different Customers can be identified so data is always physically or logically separated Customers have access only to their own Personal Data.
- Audit rights given to Customers always exclude the right or ability to look at the data of other Ireckonu Customers.
- Incident Management
In the event of any security breach of Personal Data, the effect of the breach is minimized and the Customer is promptly informed.
- Ireckonu maintains an up-to-date incident response plan that includes responsibilities, how information security events are assessed and classified as incidents and response plans and procedures.
- Ireckonu logs administrator and user activities at the production data center to provide evidence in the event of an incident.
- The clocks of all systems at the production data center are synchronized to a single reference time source to aid investigation in the event of an incident.
- Ireckonu regularly tests its incident response plan with “table-top” exercises and learns from tests and potential incidents to improve the plan.
- In the event of a security breach, Ireckonu will notify Customers without undue delay after becoming aware of the security breach.
Ireckonu tests, assesses and evaluates the effectiveness of these technical and organizational measures.
- Ireckonu conducts regular internal and external audits of its security.
- Ireckonu has a formal policy for managing suppliers who have access to Personal Data and this includes criteria for reviewing and approving suppliers and procedures for monitoring and reviewing their performance.
- Ireckonu takes reasonable steps to ensure that Personnel are aware of and comply with the technical and organizational measures set forth in this document.
- Ireckonu conducts at least annual application vulnerability scan penetration tests on the Ireckonu Service.
ANNEX 3 LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
- Name: Microsoft Azure
Address: 1 Microsoft Way, Redmond, WA 98052, USA
Contact: Julie Brill, Chief Privacy Officer, contact Azure Support: https://azure.microsoft.com/en-us/support/
Description of processing:
- Microsoft Azure hosts the Processor’s services, but does not have access to Personal Data as these are encrypted.
- Microsoft is GDPR compliant. For detailed description of the processing of data by Azure, see the following: https://docs.microsoft.com/en-us/legal/gdpr.
- The locations where the processing of the personal data will occur by Microsoft Azure, are subject to the region of choice of the Controller.
- Name: SendGrid by Twilio
Address: 1801 California St., Suite 500, Denver, 80202, Colorado, USA.
Contact: SendGrid Data Protection Officer, email to firstname.lastname@example.org or Customer Support, by e-mailing to email@example.com or opening a support ticket here: https://support.twilio.com/hc/en-us.
Description of processing:
- SendGrid facilitates the sending of transactional e-mails and marketing communication by the Controller through the Processor’s SaaS platform.
- SendGrid data centers outside the European Economic Area (EEA) are located in the following locations: Las Vegas, Nevada, USA; Chicago, Ilinois, USA; San Jose, California, USA; Herndon, Virginia, USA; Washington D.C., USA; London, UK; India, and Tokyo, Japan.
- SendGrid is committed to be GDPR compliant and hold certification under the EU-USA Privacy Shield Framework. For a full description of data processing in SendGrid, see the following links:
- Name: Auth0, Inc. (Okta, Inc.)
Contact: Okta/Auth0 Data Protection Officer (Okta Privacy Team), 100 First Street, Floor 6, San Francisco, CA 94105, USA. Email to: firstname.lastname@example.org or fill out the Okta Privacy Contact Form: https://preferences.okta.com/privacy/
For DPO contact details per region, please see the following web page: https://www.okta.com/privacy-policy/#xii-how-to-contact-okta-19 .
Description of processing:
- Auth0 processes and maintains customer profile usernames, email addresses and passwords for the Controller on behalf of the Processor to facilitate enterprise level single sign-on functionality and multi-factor authentication as components to the Identity Management System in the Processor’s SaaS Platform.
- Auth0 processes the Controller’s customer data within the geographic regions and with observation of the territorial restrictions decided by the Controller and provided by the Processor upon the first creation of the applicable Auth0 tenant. In addition, some processing of Customer Data may occur on infrastructure located in the European Union (Germany, with failover to the Republic of Ireland). Dashboard data may be viewed but not stored in the United States. Auth0 personnel may access Customer Data of the Controller from any location for the purpose of providing support subject to the authorisation and access restrictions by Auth0 and Auth0’s applicable controls.
- Auth0/Okta is committed to be GDPR compliant and holds several certifications including ISO 27001. For further information see:
ANNEX 4 STANDARD CONTRACTUAL CLAUSES
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8 – 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);
- Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
- Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
- Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
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
- 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.
- 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.
- In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
- The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
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:
- the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
- The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
- The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
- lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
- refer the dispute to the competent courts within the meaning of Clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
- The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- [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.
- 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
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
- Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
- The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
- The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
- The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of 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 Netherlands.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of the Netherlands.
- A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
 Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].
 The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
 This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
 As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.