ANNEX №3 to the MASTER SERVICE AGREEMENT №______ 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 the Customer accepting the Clauses (hereinafter — the “Data Exporter”) And Mindbox.Cloud B.V., Strawinskylaan 613 1077 XX, Amsterdam, Netherlands (hereinafter — the “Data […]
to the MASTER SERVICE AGREEMENT №______
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 the Customer accepting the Clauses (hereinafter — the “Data Exporter”) And Mindbox.Cloud B.V., Strawinskylaan 613 1077 XX, Amsterdam, Netherlands (hereinafter — 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 Clauses (including Appendices 1 and 2) are effective from the date Data Exporter has executed a valid Master Service Agreement Agreement with Annex II (“Personal Data Processing Agreement”).
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 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;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2 to Clauses, 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 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
(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 to Clauses 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 sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor 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 sub-processor 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 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. The data importer may not rely on a breach by a sub-processor 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 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.
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 sub-processor, 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 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).
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.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Data exporter is the Customer that is a party to the Clauses.
The Data importer is Mindbox.Cloud B.V., a provider of the Mindbox Service that is a software for marketing automation which is distributed as SaaS, in the course of which it processes certain personal data as a processor.
The personal data transferred concern the following categories of data subjects: the Data Exporter’s Clients.
Categories of data
The personal data transferred concern the following categories of data: name, date of birth, email address, residential address, phone number, contact details of relatives and friends, IP-addresses, device data from which the website is viewed, mobile application, device data, hash ID, marital status.
The personal data transferred will be subject to the following basic processing activities:
– Scope of Processing.
The personal data will be used to perform the services described in the Agreement to which these Clauses are incorporated.
– Term of Data Processing.
Data processing will be for the period until the termination of the Agreement. Such period will automatically terminate upon the deletion by the Data Importer of all data as described in the Data Processing Amendment.
– Access to Data.
During the term of the Agreement, the Data Importer will provide the Data Exporter with access to and the ability to rectify, restrict processing of and export the Data Exporter’s personal data from the Mindbox Service in accordance with the Agreement.
The Data Importer may engage Subprocessors to provide parts of the Services and related technical support services. The Data Importer will ensure Subprocessors only access and use the Data Exporter’s personal data to provide the Services and related technical support services and not for any other purpose.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSESThis 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(c) and 5(c) (or document/legislation attached):
Taking into account
the state of the art,
the costs of implementation and
the nature, scope, context and
purposes of processing as well as
the risk of varying likelihood and severity for the rights and freedoms of natural persons,
Mindbox. Cloud B.V. shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
Mindbox.Cloud B.V. has implemented the following measures:
1. Measures to ensure confidentiality
a. System Access Control. To prevent unauthorized persons from gaining access to data processing systems with which personal data are processed or used.
Admission control system, document reader (magnet/chip card)
Door locks (electric door opener, number lock, etc.)
Key administration / documentation of distribution of keys
Protection of facilities, guards
Special protective measures for the server room
Special protective measures for archiving back-ups and/or other data carriers
Employee and authorisation documents
Visitor rules (e.g., pick-up at reception, documentation of visiting hours, visitor pass, accompanying visitors to exit after visit).
b. Entry Control. To prevent data processing systems from being used without authorization.
Personal and individual user log-in for registration in the systems or company network
Authorization process for access authorizations
Password procedures (indication of password parameters with regard to complexity and update interval)
Electronic documentation of passwords and protection of this documentation against unauthorized access
Logging of access
c. Access Control. To ensure that persons entitled to use a data processing system have access only to the data to which they have a right of access, and that personal data cannot be read, copied, modified or removed without authorization in the course of processing or use and after storage.
Authorization process for authorizations
Segregation of duties.
d. Separation Control. To ensure that data collected for different purposes can be processed separately.
Storing data in physically separated databases
Multi-client capability of IT systems
Using pseudonyms for data
Using test data
Separating development and production environment.
2. Measures in order to ensure integrity. To ensure that personal data is processed correctly and without any manipulations.
Functional responsibilities, organizationally specified responsibilities
Logging of data transfer or sharing
Logging access for reading
Logging the copying, editing or removal of data.
3. Measures in order to ensure and restore availability. To ensure that personal data is protected against accidental destruction or loss.
Storage process for back-ups (fire-proof safe, separate fire sections, etc.)
Ensuring data storage in secured network
Need-based downloading of security updates
Setting up uninterrupted power supply
Suitable archiving facilities for paper documents
Fire-proof and/or fire water protection for server room
Climate-controlled server room
Redundant, offsite storage.
4. Measures in order to ensure resilience. To ensure that the data processing systems are sufficiently robust and resilient in order to sustain the most important expectable disturbance effects without their functionality being impaired.
Emergency plan in case of machine breakdown
Redundant power supply
Sufficient capacity of IT systems and plants
Logistically controlled processes to avoid power peaks
Resilience and error management.
5. Effectiveness control. To ensure that there are processes in place for regular testing, assessment and evaluation of the effectiveness of the technical and organisational measures.
Processes of regular controls/audits
Concept for regularly testing, assessing and evaluating
6. Instruction control. To ensure that personal data is only processed in accordance with the instructions of the controller (also in the case of a processor).
Controller to Processor Agreement in accordance with Article 28 (3) GDPR with provisions on the rights and obligations of the Processor and the Controller
Process of issuing and/or following instructions
Specification of contacts and/or responsible employees
Controlling/checking that agreement is handled in accordance with instructions
Preparing/instruction of all Processor’s access-authorized employees
Independent auditing of adherence to instructions
Commitment of employees to maintain confidentiality
Agreement on conventional penalties for infringement of instruction
Appointment of a Data Protection Officer according to Article 37 et seq. GDPR
Data protection manager / coordinator
Keeping records of processing activities in accordance with Article 30 (2) GDPR
Documentation and escalation process for data protection infringements
Guidelines/instructions for guaranteeing technical-organisational measures for data security.
DETAILS AND SIGNATURES OF THE PARTIES
|Representative of Customer:
|Representative of the Contractor:
Managing director Ivan Borovikov
and Managing director CIS Management B.V. represented by Maria Govorukhina
and Alhard Zwart