APPENDIX 3: STANDARD CONTRACTUAL CLAUSES
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to
processors established in third countries which do not ensure an adequate level of data
protection
Name of the data exporting organisation:
Duodecad IT Services Luxembourg S.à r.l.
Address: 44 Avenue John F. Kennedy, 1855 Luxembourg, Grand Duchy of Luxembourg
Tel.: + 352 26 11 18 22
E-mail: dataprocessor@doclerholding.com
And
The Program Participant
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards
with respect to the protection of privacy and fundamental rights and freedoms of individuals for the
transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Definitions
For the purposes of the Clauses:
- 'personal data', 'special categories of data',
'process/processing', 'controller', 'processor', 'data
subject' and 'supervisory authority' shall have the same meaning as in
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free
movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data
exporter
personal data intended for processing on his behalf after the transfer in accordance with
his
instructions and the terms of the Clauses and who is not subject to a third country's system
ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other
subprocessor of the data importer who agrees to receive from the data importer or from any
other
subprocessor of the data importer personal data exclusively intended for processing
activities
to be carried out on behalf of the data exporter after the transfer in accordance with his
instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data protection law' means the legislation protecting the
fundamental
rights and freedoms of individuals and, in particular, their right to privacy with respect
to
the processing of personal data applicable to a data controller in the Member State in which
the
data exporter is established;
- 'technical and organisational security measures' means those measures aimed at
protecting personal data against accidental or unlawful destruction or accidental loss,
alteration, unauthorised disclosure or access, in particular where the processing involves
the
transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where
applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i),
Clause
5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12
as
third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and
(g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has
factually disappeared or has ceased to exist in law unless any successor entity has assumed
the
entire legal obligations of the data exporter by contract or by operation of law, as a
result of
which it takes on the rights and obligations of the data exporter, in which case the data
subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and
(g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter
and
the data importer have factually disappeared or ceased to exist in law or have become
insolvent,
unless any successor entity has assumed the entire legal obligations of the data exporter by
contract or by operation of law as a result of which it takes on the rights and obligations
of
the data exporter, in which case the data subject can enforce them against such entity. Such
third-party liability of the subprocessor shall be limited to its own processing operations
under the Clauses.
- The parties do not object to a data subject being represented by an association or other
body if
the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
For the purposes of the Clauses:
- that the processing, including the transfer itself, of the personal data has been and will
continue to be carried out in accordance with the relevant provisions of the applicable data
protection law (and, where applicable, has been notified to the relevant authorities of the
Member State where the data exporter is established) and does not violate the relevant
provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services
will
instruct the data importer to process the personal data transferred only on the data
exporter's
behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and
organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the
security
measures are appropriate to protect personal data against accidental or unlawful destruction
or
accidental loss, alteration, unauthorised disclosure or access, in particular where the
processing involves the transmission of data over a network, and against all other unlawful
forms of processing, and that these measures ensure a level of security appropriate to the
risks
presented by the processing and the nature of the data to be protected having regard to the
state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been
informed or
will be informed before, or as soon as possible after, the transfer that its data could be
transmitted to a third country not providing adequate protection within the meaning of
Directive
95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to
Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data
exporter
decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the
exception of
Appendix 2, and a summary description of the security measures, as well as a copy of any
contract for subprocessing services which has to be made in accordance with the Clauses,
unless
the Clauses or the contract contain commercial information, in which case it may remove such
commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance
with
Clause 11 by a subprocessor providing at least the same level of protection for the personal
data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its
instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it
agrees to inform promptly the data exporter of its inability to comply, in which case the
data
exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from
fulfilling the instructions received from the data exporter and its obligations under the
contract and that in the event of a change in this legislation which is likely to have a
substantial adverse effect on the warranties and obligations provided by the Clauses, it
will
promptly notify the change to the data exporter as soon as it is aware, in which case the
data
exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in
Appendix
2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement
authority unless otherwise prohibited, such as a prohibition under criminal law to
preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that
request,
unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its
processing of the personal data subject to the transfer and to abide by the advice of the
supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of
the
processing activities covered by the Clauses which shall be carried out by the data exporter
or
an inspection body composed of independent members and in possession of the required
professional qualifications bound by a duty of confidentiality, selected by the data
exporter,
where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing
contract for subprocessing, unless the Clauses or contract contain commercial information,
in
which case it may remove such commercial information, with the exception of Appendix 2 which
shall be replaced by a summary description of the security measures in those cases where the
data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and
obtained
its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with
Clause
11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the
data
exporter.
Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach
of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is
entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph
1 against the data exporter, arising out of a breach by the data importer or his
subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because
the data exporter has factually disappeared or ceased to exist in law or has become
insolvent, the data importer agrees that the data subject may issue a claim against the data
importer as if it were the data exporter, unless any successor entity has assumed the entire
legal obligations of the data exporter by contract of by operation of law, in which case the
data subject can enforce its rights against such entity.
The data importer may not rely
on a breach by a subprocessor of its obligations in order to avoid its own
liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data
importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of
any of their obligations referred to in Clause 3 or in Clause 11 because both the data
exporter and the data importer have factually disappeared or ceased to exist in law or have
become insolvent, the subprocessor agrees that the data subject may issue a claim against
the data subprocessor with regard to its own processing operations under the Clauses as if
it were the data exporter or the data importer, unless any successor entity has assumed the
entire legal obligations of the data exporter or data importer by contract or by operation
of law, in which case the data subject can enforce its rights against such entity. The
liability of the subprocessor shall be limited to its own processing operations under the
Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary
rights and/or claims compensation for damages under the Clauses, the data importer will
accept
the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by
the
supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is
established.
- The parties agree that the choice made by the data subject will not prejudice its
substantive or
procedural rights to seek remedies in accordance with other provisions of national or
international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority
if it
so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the
data
importer, and of any subprocessor, which has the same scope and is subject to the same
conditions as would apply to an audit of the data exporter under the applicable data
protection
law.
- The data importer shall promptly inform the data exporter about the existence of legislation
applicable to it or any subprocessor preventing the conduct of an audit of the data
importer, or
any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be
entitled to
take the measures foreseen in Clause 5 (b).
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is
established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from
adding clauses on business related issues where required as long as they do not contradict the
Clause.
Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf
of
the data exporter under the Clauses without the prior written consent of the data exporter.
Where the data importer subcontracts its obligations under the Clauses, with the consent of
the
data exporter, it shall do so only by way of a written agreement with the subprocessor which
imposes the same obligations on the subprocessor as are imposed on the data importer under
the
Clauses. Where the subprocessor fails to fulfil its data protection obligations under such
written agreement the data importer shall remain fully liable to the data exporter for the
performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide
for
a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject
is
not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against
the
data exporter or the data importer because they have factually disappeared or have ceased to
exist in law or have become insolvent and no successor entity has assumed the entire legal
obligations of the data exporter or data importer by contract or by operation of law. Such
third-party liability of the subprocessor shall be limited to its own processing operations
under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract
referred to
in paragraph 1 shall be governed by the law of the Member State in which the data exporter
is
established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses
and
notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once
a
year. The list shall be available to the data exporter's data protection supervisory
authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the
data
importer and the subprocessor shall, at the choice of the data exporter, return all the
personal
data transferred and the copies thereof to the data exporter or shall destroy all the
personal
data and certify to the data exporter that it has done so, unless legislation imposed upon
the
data importer prevents it from returning or destroying all or part of the personal data
transferred. In that case, the data importer warrants that it will guarantee the
confidentiality
of the personal data transferred and will not actively process the personal data transferred
anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or
of
the supervisory authority, it will submit its data processing facilities for an audit of the
measures referred to in paragraph 1.
