Standard contractual clauses for the transfer of personal data to Processors Established in Third Countries Under Directive 95/46/EC
Between and among:
<CUSTOMER> [and <CUSTOMER> entities expressly stated, if any] (each a “data exporter”),
and
Tango Card, Inc., (the “data importer” who shall Process the Data)
each a “party”; together “the parties.”
[alternatively, in the event the Customer has an EU branch that is the “data exporter”, and a US branch that is Tango's direct customer and the “data importer”, and Tango Card serves only as a “sub-processor” of data:]
<CUSTOMER> [and those <CUSTOMER> entities set out in Appendix 5, if any] (each a “data exporter”),
and
<CUSTOMER> (the “data importer”),
and
Tango Card, Inc., (the “sub-processor” who shall Process the Data)
each a “party”; together “the parties.”
WHEREAS the Data exporter and the data importer are entering into or have entered into a certain master services agreement and a certain Privacy and Data Security Addendum (collectively, the “Agreement”).
WHEREAS, pursuant to the Agreement the data exporter and data importer have agreed to execute these contractual clauses (the “Clauses”) with the data exporters in order satisfy applicable EU and Swiss data protection requirements.
For the purposes of Article 26(2) of Directive 95/46/EC with respect to the personal data originating in the European Economic Area, and Article 6, paragraph 2 (a) of the Swiss Federal Act on Data Protection of 1992 (DPA) with respect to personal data originating in Switzerland, for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
IT IS AGREED
on the following Clauses in order to adduce adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) “personal data” means any information relating to an identified or identifiable data subject, including, without limitation, the information identified in Appendix 1. For data originating in Switzerland, the term “personal data” shall also include information relating to an identified or identifiable legal entity.
(b) “special categories of data” means personal data identifying a data subject’s race, religion, ethnicity, trade union affiliation, sexual orientation or family status.
(c) “process/processing” means any operation or set of operations which is performed upon personal data, whether or not by automatic means, including but not limited to collecting, generating, using, retrieving, recording, storing, hosting, retaining, processing, editing, searching, printing out, handling, viewing, revising, reconstructing, disclosing, rectifying, altering, erasing, deleting, disposing of or otherwise processing personal data.
(d) “data subject” shall mean the individual to whom particular personal data relate.
(e) “supervisory authority” shall mean the data exporter”s data protection regulator or other government body with equivalent supervisory authority over the data exporter;
(f) “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;
(g) “the applicable data protection law” means the relevant data protection or privacy laws, (including any subsidiary legislation, amendments and updates to such legislation), applicable to data exporter in the country(ies) in which the data exporter is established;
(h) “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, including, without limitation, the measures specified in Appendix 2.
Clause 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 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
(1) 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.
(2) 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.
(3) 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.
(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.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) 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 country where the data exporter is established) and does not violate the relevant provisions of that State;
(b) 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;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) 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;
(e) that it will ensure compliance with the security measures;
(f) 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 (or respectively, within the meaning of Article 6 DPA with respect to data received from Switzerland);
(g) 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;
(h) 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;
(i) 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
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) 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;
(b) 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;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor Agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
(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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
(2) If a data subject is not able to bring a claim for compensation in accordance with paragraph (a) 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.
(3) The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
(4) If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs (a) and (b), 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.
Clause 7
Mediation and jurisdiction
(1) 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:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the country in which the data exporter is established.
(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.
Clause 8
Cooperation with supervisory authorities
(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.
(2) 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.
(3) 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 (b). In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the country in which the data exporter is established.
Clause 10
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.
Clause 11
Subprocessing
(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 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.
(2) 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.
(3) 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 country in which the data exporter is established.
(4) 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.
Clause 12
Obligation after the termination of personal data processing services
(1) 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.
(2) 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).
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States and Switzerland may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data Exporter
The data exporter is: <CUSTOMER>
Data Importer
The data importer is: <CUSTOMER or TANGO CARD, as applicable>
[if applicable:] Data Sub-processor
The data sub-processor is: Tango Card, Inc.
Data Subjects
The personal data transferred concern the following categories of data subjects: Customer’s employees, customers, vendors, and contractors
Categories of Personal Data
The Personal Data Transferred concern the following categories of data: name, contact information email, and country location
Special categories of Personal Data
The personal data transferred concern the following special categories of data (please specify): none
Processing operations
The personal data transferred will be subject to the following basic processing activities: services and resources for businesses to create, launch, operate and manage rewards programs
Jurisidiction
The parties agree that the sole place of jurisdiction for any and all disputes arising from and in connection with these Standard Contractual Clauses shall be London, United Kingdom, unless there is a sole statutory place of jurisdiction.
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 organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
APPENDIX 3: MODIFICATIONS TO THE CLAUSES FOR ARGENTINE DATA
The Parties agree that, with respect to a data exporter established in Argentina, the following modifications to the Clauses shall apply:
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 cooperate in good faith with data exporter as necessary for data exporter to respond to the advice of the supervisory authority with regard to the processing of the personal data transferred;
APPENDIX 4: MODIFICATIONS TO THE CLAUSES
The Parties agree that the following modifications to the Clauses shall apply: