Ciptex – Data Processing Agreement v8.7

Revision Date: 20th July 2021

Data Processing Agreement

This document concerns the processing of Personal Data (as defined below) in relation to the delivery of Services provided by the Supplier, as further specified in the Agreement between the Supplier and Company. On occasion, Ciptex may send you relevant information about our products and services.

Definitions and rules of interpretation

1.1         The terms used in this Data Processing Agreement shall have the meanings set forth herein.  Capitalised terms not otherwise defined herein shall have the meaning given in the Agreement.

1.2         In this Data Processing Agreement, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

“Company”  means the purchaser of the Services from the Supplier

“Company Affiliate”  means Company’s holding company and ultimate holding company and each of its subsidiary companies and its holding company’s and ultimate holding company’s subsidiary companies from time to time (with “holding company” and “subsidiary” having the meanings given to them in section 1159 of the Companies Act 2006) and any employee, officer, or contractor of Company or Company Affiliate;

“Data Flow Diagram”  means the diagrammatic representation of the data flow necessary to deliver the Service, naming Controller, Processor and all required Sub-processor organisations (Appendix 3).

“DPA – 2018”   means the UK Data Protection Act 2018

 “Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and, as amended, replaced, or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;  including but not limited to Data Protection Act 2018; and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003);

“GDPR”  means  General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time

 “Personal Data”   means any information that:

      (i)  relates to an identified person or identifiable natural person, who can be identified, directly or indirectly, by reference to that information; or

   (ii)  would be considered personal information as such term or concept is defined by Data Protection Laws;

“Restricted Transfer”  means an onward transfer of Personal Data from Supplier to a Sub processor where such transfer would be prohibited by the EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of the EU Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under clause 12;

“Standard Contractual Clauses”  means the contractual clauses set out in Schedule A, as amended as indicated (in square brackets and italics) in that schedule and under the Agreement.

“Services”   means the services to be provided by the Supplier to the Company as set out in the Terms and Conditions and any Order Form

“Supplier”    Ciptex Ltd

1.3       References in this Data Processing Agreement to any terms defined in  the Data Protection Laws (including without limitation Data Controller, Data-Processor , personal data breach and Sub-Processor) have the meanings as defined in the Act and currently meeting EU adequacy provisions  to EU Data Protection Laws.

Processing of Personal Data, scope, and purpose

2.1         Supplier shall at all times, comply with Data Protection Laws  in the processing of Personal Data for the purposes of provision of Services and not process Personal Data other than on the Company’s documented written instructions unless processing is required by applicable laws to which Supplier is subject, in which case Supplier shall to the extent permitted by applicable laws inform the Company of that legal requirement before the relevant processing of that Personal Data.  For clarity, any documented instructions from the Company Affiliate who has provided those specific instructions shall be deemed for the purpose of this Data Processing Agreement the Company Affiliates’ documented instructions and will only apply to that specific Company Affiliate.

2.2         Company instructs Supplier to process Personal Data as reasonably necessary for the provision of Services and consistent with the Agreement.  The processing activities will involve:

              Categories of Personal Data:  Personal Data may include, among other information:

(a)      personal information such as title, name, address, telephone or mobile number, email address, and business contact details;

(b)     information concerning health, family, lifestyle, and social circumstances including age, date of birth, nationality, marital status, and dependents;

(c)      financial information such as national insurance number, tax code, and bank account details.

              Categories of Data Subjects: 

Data subjects include the Company’s customers, and  any other identifiable person whose Personal Data is being processed.

2.3         During the term of the Agreement, the Company may provide written instructions to Supplier in addition to those specified in the Agreement with regard to the processing of Personal Data.  Supplier shall comply with all such instructions without additional charge to the extent necessary for Supplier to comply with  Data Protection Laws  as a data processor.

2.4         Collection.  Supplier shall only collect, store, transmit, disclose, process, destroy, or otherwise use any Personal Data in accordance with the Company’s instruction and never in a manner that contravenes Data Protection Laws or fails to meet the requirements set forth in this Data Processing Agreement.  Supplier shall not distribute, sell, license, lease, transfer, or otherwise convey Personal Data for Supplier’s own purposes or for the benefit of any other party other than Company, without Company’s prior written consent.

2.5         Collection.

(a)     To the extent that Supplier collects Personal Data on Company’s behalf, Supplier shall only collect that Personal Data necessary to perform Services under the Agreement or to otherwise fulfil Company’s instructions on collection.

(b)     Supplier shall notify Company about the methods of operation and data collection capabilities for any cookie, JavaScript, pixel, beacon, statistical ID, probabilistic ID, UIDI, similar tracking mechanisms, or other method of monitoring a user or device across web and/or app locations or properties (Tracking Technologies) Supplier intends to use and shall not use Tracking Technologies without Company’s prior written consent.  Supplier shall never use Tracking Technologies that: (i) use Flash local shared objects; (ii) fail to provide users with an opportunity to control the use of such Tracking Technologies; (iii) are deployed on behalf of other parties (so-called “fourth-party” tracking or “piggy-backing”); or (iv) circumvent user preferences as designated in Web browser privacy controls.

2.6         Data location. 

Unless otherwise agreed upon by the parties in writing, Supplier shall use Personal Data only in (i) the jurisdiction in which the data subject resides (predominantly the UK); or (ii) the European Economic Area (EEA) if the data subject resides anywhere within the EEA.  Supplier shall obtain the written consent of Company prior to the transfer of Personal Data from the EEA to a country outside the EEA.  As at the date of this Agreement the Parties acknowledge that the Supplier shall process Personal Data in the UK, the EEA and (where necessary for the purposes of business continuity) US jurisdictions and the parties shall comply with the provisions of clause 12 in respect of such processing.

2.7       Data Flow Diagram

Appendix 3 contains the Data Flow Diagram.  No changes will be made to the Service as represented in the Data Flow Diagram, without the written consent of both parties.

Confidentiality

3.1         Supplier shall keep all Personal Data confidential and only disclose such information strictly in relation to its processing activities under this Data Processing Agreement to its employees on a need to know basis.

3.2         Supplier shall take reasonable steps to ensure the reliability of any employee who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know or access the relevant Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Data Protection Laws in the context of that individual’s duties to Supplier, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

Sub processing

• Supplier shall not sub-contract any of its obligations to a sub-data processor without the Customer’s prior written consent. Where the Customer gives its written consent  to the Supplier to engage a sub-contractor to carry out any part of the Services involving the Processing of Personal Data, the Supplier must include in any contract with the third party provisions which are equivalent to those in this Data Processing Agreement and as are required by Data Protection Laws.  For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement or any Data Protection Laws, the Supplier will remain fully liable to the Customer for the fulfilment of the Supplier’s obligations under these terms.

• If any of the Sub processors appointed by Supplier and approved by Customer are located outside the UK or the EEA, then the Supplier shall enter into the Controller-to-Processor Standard Contractual Clauses set out Schedule A to this Data Processing Agreement with such Sub-processor(s) with Supplier as the “data exporter” in Customer’s name and on its behalf and the Sub processor as the “data importer.” The Supplier will make the executed Controller-to- Processor Standard Contractual Clauses available to Customer promptly on the Customer’s request;

• In respect of any data transfers under this clause 4 which rely on the controller to processor standard contractual clauses to enable the lawful transfer of Customer Personal Data the parties agree that Data Subjects for whom a Supplier entity or a third party sub- data processor processes Customer Personal Data are third-party beneficiaries under the Standard Contractual Clauses.

Data subject rights

Supplier shall put in place all appropriate technical and organisational measures to enable Company to comply with its obligations to respond to requests from data subjects to exercise their rights in respect of Personal Data, including but not limited to the right to access the Personal Data processed by Supplier and to request the rectification of inaccurate Personal Data.  Supplier shall not respond to any such request from a data subject without receiving the prior written consent of Company.

Personal data breach

6.1      Supplier shall notify Company without undue delay upon Supplier or any Sub processor (as the case may be) becoming aware of a personal data breach affecting Personal Data, providing Company with sufficient information to allow Company to meet any obligations to report or inform data subjects of the personal data breach under the Data Protection Laws.  Such notification shall as a minimum:

(a)      Describe the nature of the personal data breach, the categories, and numbers of data

         subjects concerned, and the categories and numbers of personal data records concerned;

(b)     Communicate the name and contact details of Supplier’s data protection officer or other relevant contact from whom more information may be obtained;

(c)      Describe the likely consequences of the personal data breach; and

(d)     Describe the measures taken or proposed to be taken to address the personal data breach.

6.2         Supplier shall cooperate with Company and take such reasonable steps as are directed by Company to assist in the investigation, mitigation, and remediation of each such personal data breach.

Data protection impact assessment and prior consultation

Consistent with the size and complexity of its organisation, Supplier shall maintain its own privacy process that manages its handling of personal information and includes a documented data breach response.  Supplier will appoint (or have appointed) a leader to oversee this privacy process.  Where necessary, Supplier shall assist Company in completing privacy impact assessments and in consultations with the relevant supervisory authorities.

Data processor and data controller

Supplier shall fully comply with all applicable governmental, legal, regulatory, and professional requirements, relating to privacy including Data Protection Laws.  For the purposes of  Data Protection Laws, Supplier is considered a data processor in relation to the Personal Data it accesses under the Agreement and the Company the data controller.

Information security

9.1         Supplier shall implement and maintain compliance with appropriate technical and organisational security measures (including the measures set out below) to process and protect Personal Data.

9.2         Compliance with industry standards.  Supplier shall use organisational, administrative, physical, and technical policies, standards, and controls to protect Personal Data against the unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, Personal Data.  Such measures shall be consistent with current accepted industry standards (e.g., the NIST Cyber Security Framework, ISO 27001/27002, etc.) and comply at all times with all Data Protection Laws concerning the protection and securing of information.

9.3         Assessment and review.  Supplier shall implement a process for regularly testing, assessing, and evaluating the effectiveness of the security measures it puts in place to ensure the security of Personal Data.

9.4         Encryption.  Supplier shall not store Personal Data on any portable device or media (e.g., laptop, flash drive, Smartphone) that does not use industry standard, full disk (where possible) encryption.  All Personal Data shall be encrypted when in transit and at rest consistent with accepted industry encryption standards.

9.5         Web-enabled applications.  All internet facing websites accessed by Company employees must have industry standard tuned Web Application Firewall (WAF) and must be scanned and remediated using accepted industry standard for security vulnerabilities (e.g., Open Web Application Security Project and Open Web Application Security Project Top 10).  Scans and remediation must first be completed prior to application launch.  Post launch, Company shall conduct scans at a frequency that is appropriate for the relevant application, technology, and data risk.  Websites shall implement and maintain accepted industry standard account and password management controls, including:

(a)      Lockout after no more than ten unsuccessful login attempts;

(b)     Prohibiting user IDs, passwords, and Personal Data from being displayed in a URL;

(c)      Storing user passwords and reset or forgotten security questions in an encrypted manner;

(d)     Re-authentication is required after no more than 30 minutes of inactivity; and

(e)      Prohibiting the storage of passwords or Personal Data in persistent local storage (caches, etc.) or in any cookies, JavaScript, or other web tracking technology.

9.6         Awareness and training.  Supplier shall provide information security awareness training to all its employees with access to Personal Data or Company systems or networks that materially addresses the security requirement in this Data Processing Agreement.

9.7         Hosted systems.  Supplier shall notify Company in writing when it hosts Personal Data in a shared or cloud environment.  Supplier shall protect (or if applicable cause its Sub processor to protect) the Personal Data in this cloud environment using controls consistent with accepted industry standards (e.g., Cloud Security Alliance Cloud Controls Matrix).  Supplier shall collaborate in good faith to identify an alternative to such hosting should Company so request.

9.8         Records and continuity.  Supplier shall maintain a records retention process and a business continuity plan for all Personal Data in its control or custody.

9.9         Disposal.  Supplier shall destroy Personal Data using a secure means of disposal (e.g., incineration or cross-cut shredding) when such data is no longer required (either for the supply of Software and provision of services or to be retained by law).  Hardware containing Personal Data must be physically destroyed or securely overwritten prior to disposal or use for another purpose.

9.10        Device management.  Supplier shall use only securely configured, corporate-owned devices (i.e., non-BYOD or hybrid or work personal use devices) to connect Company networks and systems or to access or store Personal Data.

Deletion or return of Personal Data

10.1        On expiration or termination of the Agreement, Supplier shall promptly and in any event within 30 days of the date of termination or expiration:

(a)      Return a complete copy of all Personal Data to Company or a third party nominated by Company by secure file transfer in such format as is reasonably notified by Company to Supplier; and

(b)     Delete and procure the deletion of all other copies of Personal Data.

              Supplier may retain Personal Data to the extent required by Data Protection Laws and only to the extent and for such period as required by such Data Protection Laws and always provided that Supplier shall ensure the confidentiality of all such Personal Data and shall ensure that such data is only processed as necessary for the purposes specified in the Data Protection Laws requiring its storage and for no other purpose.

10.2        Supplier shall provide written certification to Company that it has fully complied with this clause 10 within five days of the date of deletion.

Audit rights

11.1        Supplier shall make available to Company on request all information necessary to demonstrate compliance with this Data Processing Agreement, and shall allow for and contribute to audits, including inspections, by Company or an auditor appointed by Company in relation to the processing of Personal Data by Supplier.

11.2        Information and audit rights of Company only arise under clause 11.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 23(3)(h) of the GDPR).

Restricted Transfers

12.1        Company (as “data exporter”) and Supplier (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from Company to Supplier.

12.2        The Standard Contractual Clauses shall come into effect under clause 12.1 on the later of:

(a)     The data exporter becoming a party to them;

(b)    The data importer becoming a party to them; and

(c)      Commencement of the relevant Restricted Transfer.

12.3        Clause 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from data subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable EU Data Protection Laws

General terms

13.1        Duration.  This Data Processing Agreement shall remain in force for so long as Supplier has Personal Data in its control or custody.

13.2        Order of precedence.  This Data Processing Agreement is subject to the terms of the Agreement.  In the event of any conflict between the terms of the Agreement and the terms of this Data Processing Agreement, the terms of the Data Processing Agreement shall prevail.

13.3        Materiality.  If Supplier fails to comply with any of the terms in this Data Processing Agreement, then Company shall have the right to either suspend Supplier’s performance under the Agreement or terminate the Agreement with immediate effect, without any penalty, liability, or further obligation.

Schedule A

[These Clauses are deemed to be amended from time to time, to the extent that they relate to a Restricted Transfer which is subject to the EU Data Protection Laws of a given country or territory, to reflect (to the extent possible without material uncertainty as to the result) any change (including any replacement) made in accordance with those EU Data Protection Laws (i) by the Commission to or of the equivalent contractual clauses approved by the Commission under EU Directive 95/46/EC or the GDPR (in the case of the EU Data Protection Laws); or (ii) by an equivalent competent authority to or of any equivalent contractual clauses approved by it or by another competent authority under another EU Data Protection Laws (otherwise).]

[If these Clauses are not governed by the law of a Member State, the terms “Member State” and “State” are replaced, throughout, by the word “jurisdiction”.]

Standard Contractual Clauses for Personal Data (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.  [This opening recital is deleted if these Clauses are not governed by the law of a member state of the EEA.]

Name of the data exporting organisation: 

Address: 

(the “data exporter”);

And

Name of the data importing organisation:  Ciptex Limited (“CIPTEX”)

Address:  Chancery House, 30 St. Johns Road, Woking, Surrey, GU21 7SA

(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 the Data Processing Agreement.

1          Definitions

For the purposes of the Clauses:

1.1    ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’, and ‘Commissioner’ shall have the same meaning as in the UK GDPR;

1.2    ‘the data exporter’ means the controller who transfers the personal data;

1.3    ‘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 covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;

1.4    ‘the Sub processor’ means any processor engaged by the data importer or by any other Sub processor of the data importer who agrees to receive from the data importer or from any other Sub processor 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;

1.5    ‘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 UK;

1.6    ‘technical and organisational 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.

2       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 of the Data Processing Agreement which forms an integral part of the Clauses.

3          Third/party beneficiary clause

3.1    The data subject can enforce against the data exporter in this Clause, Clause 4.2 to 4.9, Clause 5.1 to 5.5, and 5.7 to 5.10, Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

3.2    The data subject can enforce against the data importer in 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.

3.3    The data subject can enforce against the Sub processor in 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. 

3.4    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.

4       Obligations of the data exporter

The data exporter agrees and warrants:

4.1    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;

4.2    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;

4.3    that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

4.4    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 los, 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;

4.5    that it will ensure compliance with the security measures;

4.6    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 covered by adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;

4.7    to forward any notification received from the data importer or any Sub processor 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;

4.8    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 Sub processing 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;

4.9    that, in the event of Sub processing, the processing activity is carried out in accordance with clause 11 by a Sub processor 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

4.10   that it will ensure compliance with Clause 4.1 to 4.9.

5       Obligations of the data importer

The data importer agrees and warrants:

5.1    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;

5.2    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;

5.3    that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

5.4    that it will promptly notify the data exporter about:

(i)      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,

(ii)     any accidental or unauthorised access, and

(iii)     any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

5.5    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;

5.6    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;

5.7    to make available to the data subject upon request a copy of the Clauses, or any existing contract for Sub processing, 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;

5.8    that, in the event of Sub processing, it has previously informed the data exporter and obtained its prior written consent;

5.9    that the processing services by the Sub processor will be carried out in accordance with Clause 11;

5.10   to send promptly a copy of any Sub processor agreement it concludes under the Clauses to the data exporter.

6       Liability

6.1    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 Sub processor is entitled to receive compensation from the data exporter for the damage suffered.

6.2    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 Sub processor 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.

6.3    The data importer may not rely on a breach by a Sub processor of its obligations in order to avoid its own liabilities.

6.4    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 Sub processor 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 Sub processor agrees that the data subject may issue a claim against the data Sub processor 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 Sub processor shall be limited to its own processing operations under the Clauses.

7       Mediation and jurisdiction

7.1    The data importer agrees that if the data subject invokes third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a)     to refer the dispute to mediation, by an independent person or, where applicable, by the Commissioner;

(b)     to refer the dispute to the UK courts.

7.2    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.

8       Cooperation with supervisory authorities

8.1    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.

8.2    The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any Sub processor, which has the same scope and it subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

8.3    The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any Sub processor preventing the conduct of an audit of the data importer, or any Sub processor, pursuant to paragraph 2.  In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

9       Governing law

The Clauses shall be governed by the law of the country of the United Kingdom in which the data exporter is established, namely England.

10        Variation of the contract

The parties undertake not to vary or modify the Clauses.  This does not preclude the parties from (i) making changes permitted by Paragraph 7(3) & (4) of Schedule 21 Data Protection Act 2018; or (ii) adding clauses on business related issues where required as long as they do not contradict the Clause.

11        Sub processing

11.1   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 Sub processor which imposes the same obligations on the Sub processor as are imposed on the data importer under the Clauses.  Where the Sub processor 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 sub processor’s obligations under such agreement.

11.2   The prior written contract between the data importer and the Sub processor 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 Sub processor shall be limited to its own processing operations under the Clauses.

11.3   The provisions relating to data protection aspects for Sub processing of the contract referred to in paragraph 1 shall be governed by the laws of the country of the UK where the exporter is established.

11.4   The data exporter shall keep a list of Sub processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.10 which shall be updated at least once a year.  The list shall be available to the Commissioner.

12     Obligation after the termination of personal data processing services

12.1   The parties agree that on the termination of the provision of data processing services, the data importer and the Sub processor 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 do, 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.

12.2   The data importer and the Sub processor warrant that upon request of the data exporter and/or the Commissioner, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 – to the Standard Contractual Clauses

Data Exporter

The data exporter is a UK-based supplier of residential property services and is contracting with the importer for it to provide a software solution for taking card payments over telephone calls.  The data exporter is using the personal data which is being transferred to identify the caller.

Data Importer

The data importer is a is a UK based provider of call handling services and card payment processing.  The data importer uses a US based sub processor to process telephone calls in the event of failure of primary processing facilities in the UK and EEA.

Appendix 2 – to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4.4 and 5.3 (or document/legislation attached):

https://www.twilio.com/legal/binding-corporate-rules (Processor)

ILLUSTRATIVE INDEMNIFICATION CLAUSE (OPTIONAL)

Liability

The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.

Indemnification is contingent upon:

(a) the data exporter promptly notifying the data importer of a claim; and

(b) the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim1.

¹ Paragraph on liabilities is optional.