Chronicle Services: EU Model
Contract Clauses (Controller-to-Processor) - UK
Last modified:
September 27, 2021
Standard
Contractual Clauses (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 Customer
(the “Data Exporter”) and Chronicle (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.
The parties agree that
execution of the Agreement to provide Services shall constitute execution of
the Clauses by both parties.
Capitalized terms used but
not defined in the Clauses (including the Appendices) have the meanings given
to them in the Agreement into which the Clauses are incorporated. If the
Agreement authorizes the resale or supply of Services under a Chronicle partner
or reseller agreement or program, then all references in these Clauses to: (a)
Customer mean Partner or Reseller (as applicable), and (b) Customer Personal
Data mean Partner Personal Data.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘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;
(b) ‘the Data Exporter’ means the controller who transfers the
personal data;
(c) ‘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;
(d) ‘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;
(e) ‘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;
(f) ‘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.
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 Member State
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 organisational 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;
(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 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;
(i) that, in the event of
sub-processing, 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 organisational
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 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;
(h) that, in the event of sub-processing, 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 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 or 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.
3. 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.
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 Member State 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 2. 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 Member State 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
Sub-Processing
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
sub-processing 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
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(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.
to the Standard Contractual
Clauses
This Appendix forms part of
the Clauses
Data Exporter
The Data Exporter is Customer.
Data Importer
The Data Importer is Chronicle.
Data Subjects
Data subjects include the individuals about whom data is
provided via the Services by (or at the direction of) the Data Exporter. These
individuals may include, for example: employees, other staff such as contractors
and temporary workers, customers and clients (including their staff), other end
users, suppliers (including their staff), relatives and associates of the
above, advisers, consultants and other professional experts, shareholders,
members or supporters, and students and pupils.
Categories of data
Customer Personal Data, including data relating to individuals
provided via the Services by (or at the direction of) the Data Exporter. This
data may include, for example:
●
Personal details, including any information that identifies
the data subject and their personal characteristics, including: name, address,
contact details, age, date of birth, sex, and physical description.
●
Employment details, including information relating to the
employment of the data subject, including employment and career history,
recruitment and termination details, attendance records, performance
appraisals, training records, and security records.
●
Financial details, including information relating to the
financial affairs of the data subject, including income, salary, assets and
investments, payments, creditworthiness, loans, benefits, grants, insurance
details, and pension information.
●
Education and training details, including information
which relates to the education and any professional training of the data
subject, including academic records, qualifications, skills, training records,
professional expertise, student and pupil records.
●
Personal details issued as an identifier by a public
authority, including passport details, national insurance numbers, identity
card numbers, driving licence details.
●
Family, lifestyle and social circumstances, including any
information relating to the family of the data subject and the data subject’s
lifestyle and social circumstances, including details of family and other
household members, habits, housing, travel details, leisure activities, and
membership of charitable or voluntary organisations.
Special categories of data
(if appropriate)
Customer Personal Data may include special categories of
personal data (as defined in the GDPR). This may include, for example: personal
data revealing racial or ethnic origin, political opinions, religious or
philosophical beliefs, or trade union membership, and the processing of genetic
data, biometric data for the purpose of uniquely identifying a natural person,
data concerning health or data concerning a natural person’s sex life or sexual
orientation.
The restrictions and safeguards specified in Appendix 2 apply to
these categories of Customer Personal Data (if any).
Processing operations
The frequency of the transfer
(e.g. whether the data is transferred on a one-off or
continuous basis).
Customer Personal Data may be transferred on a continuous basis
until it is deleted in accordance with the terms of the Data Processing and
Security Terms.
Nature of the processing
The Data Importer will process Customer Personal Data to
provide, secure and monitor the Services and Chronicle TSS in accordance with
the Agreement .
Purpose(s) of the data
transfer and further processing
The Data Importer will transfer Customer Personal Data to
provide, secure and monitor the Services and Chronicle TSS in accordance with
the Agreement.
The period for which the
personal data will be retained, or, if that is not possible, the criteria used
to determine that period
For the duration of the Agreement until deletion in accordance
with the provisions of the Data Processing and Security Terms.
For transfers to (sub-) processors, also specify subject matter,
nature and duration of the processing
As above.
to the Standard Contractual
Clauses
This Appendix forms part of
the Clauses.
Description of the technical and organisational security
measures implemented by the Data Importer in accordance with Clauses 4(c) and
5(c) (or document/legislation attached): The Data Importer will implement and
maintain security standards at least as protective as those set out in Appendix
2 to the Data Processing and Security Terms.
*Mandatory requirements of the national legislation applicable
to the data importer which do not go beyond what is necessary in a democratic
society on the basis of one of the interests listed in Article 13(1) of
Directive 95/46/EC, that is, if they constitute a necessary measure to
safeguard national security, defence, public security, the prevention,
investigation, detection and prosecution of criminal offences or of breaches of
ethics for the regulated professions, an important economic or financial interest
of the State or the protection of the data subject or the rights and freedoms
of others, are not in contradiction with the standard contractual clauses. Some
examples of such mandatory requirements which do not go beyond what is
necessary in a democratic society are, inter alia, internationally recognised
sanctions, tax-reporting requirements or anti-money-laundering reporting
requirements.