EXHIBITS:

 

Exhibit 1Data Transfer Agreement Template

Exhibit 2Data Process Agreement Template

Exhibit 3Security Requirements and Technical and Organizational Measures

 

 

 

 

Exhibit 1 DATA TRANSFER AGREEMENT

 

DATA TRANSFER AGREEMENT

 

——STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

 

 

【Instructions】

 

1.     Commission Decision 2010/87 on the standard contractual clauses(“SCCs”) is considered as offering adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights as required by Article 26(2) of Directive 95/46/EC of the European Parliament and of the Council.

 

2.     The SCCs shall apply to the transfer of personal data by controllers established in the European Union to recipients established outside the territory of the European Union who act only as processors.

 

 

Name of the data exporting

organisation: ...................................................................................................................

Address:.......................................................................................................................................................

Tel. ...............................................................;.  fax   ...............................................................;. 

e-mail: ...............................................................

Other information needed to identify the organisation:

........................................................................................................................................................

(the data exporter)

 

And,

Name of the data importing

organisation: ...................................................................................................................

Address:.......................................................................................................................................................

Tel. ...............................................................;.  fax   ...............................................................;. 

e-mail: ...............................................................

Other information needed to identify the organisation:

........................................................................................................................................................

(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.

 

          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[1];

(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 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;

(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 sub-processor 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 sub- processor 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, 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[2]

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 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, namely ................................................................................................................................................................................................................

 

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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses[3]. Where the sub-processor fails to fulfill 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.
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.
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, namely ...........................................
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 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 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 sub-processor 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.

 

 

On behalf of the data exporter:

Name (written out in full): ..................................................................................................................................

Position:.........................................................................................................................................................................

Address:.............................................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

 

Signature ............................................................................................

(stamp of organisation)

 

On behalf of the data importer:

Name (written out in full): ..................................................................................................................................

Position:.........................................................................................................................................................................

Address:.............................................................................................................................................................................

Other information necessary in order for the contract to be binding (if any):

 

Signature ............................................................................................

(stamp of organisation)

Appendix 1

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

 

The Member States 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 (please specify briefly your activities relevant to the transfer):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

Categories of data

The personal data transferred concern the following categories of data (please specify):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

 

...........................................................................................................................................................................

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

 

DATA EXPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

 

DATA IMPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

Appendix 2

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(d) and 5(c) (or document/legislation attached):

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

...........................................................................................................................................................................

 

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 claim[4].

 

 

 

DATA EXPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

 

DATA IMPORTER

Name: ....................................................................................................................

Authorised Signature ...........................................................................................

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 2 DATA PROCESS AGREEMENT

 

DATA PROCESS AGREEMENT

 

【INSTRUCTION】

1．The draft standard contractual clauses (SCCs) for contracts between controller and processor submitted to the Board by the Danish Supervisory Authority (SA), has been published in the EDPB's Register for Decisions taken by supervisory authorities and courts on issues handled in the consistency mechanism.

2．The standard processor agreement has been adopted by the Danish SA pursuant to art. 28(8) GDPR and aims at helping organisations to meet the requirements of art. 28 (3) and (4).

3．The possibility of using SCCs adopted by a SA does not prevent the parties from adding other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, the adopted clauses or prejudice the fundamental rights or freedoms of the data subjects.

4．Nevertheless, the clauses are an instrument to be used "as is", i.e. the parties who enter into a contract with a modified version of the clauses are not deemed to have employed the adopted SCCs. 

 

 

 

 

between

 

[NAME]

CVR [CVR-NO]

[ADDRESS]

[POSTCODE AND CITY]

[COUNTRY]

 

(the data controller)

 

and

 

[NAME]

CVR [CVR-NO]

[ADDRESS]

[POSTCODE AND CITY]

[COUNTRY]

 

(the data processor)

 

each a ‘party’; together ‘the parties’

 

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.

 

1. Table of Content

 

2.  Preamble........................................................3

3.  The rights and obligations of the data controller...............................3

4.  The data processor acts according to instructions..............................4

5.  Confidentiality.....................................................4

6.  Security of processing................................................4

7.  Use of sub-processors................................................5

8.  Transfer of data to third countries or international organisations....................6

9.  Assistance to the data controller.........................................7

10.  Notification of personal data breach......................................8

11.  Erasure and return of data.............................................8

12.  Audit and inspection................................................9

13.  The parties’ agreement on other terms....................................9

14.  Commencement and termination........................................9

15.  Data controller and data processor contacts/contact points.......................10

Appendix AInformation about the processing..............................11

Appendix BAuthorised sub-processors..................................12

Appendix CInstruction pertaining to the use of personal data....................13

Appendix DThe parties’ terms of agreement on other subjects...................18

2. Preamble

1.          These contractual clauses of the agreement (the Clauses) set out the rights and obligations of the data controller and the data processor, when processing personal data on behalf of the data controller.

2.          The Clauses have been designed to ensure the parties’ compliance with Article 28(3) of Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

3.          In the context of the provision of [NAME OF SERVICE], the data processor will process personal data on behalf of the data controller in accordance with the Clauses.

4.          The Clauses shall take priority over any similar provisions contained in other agreements between the parties.

5.          Four appendices are attached to the Clauses and form an integral part of the Clauses.

6.          Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.

7.          Appendix B contains the data controller’s conditions for the data processor’s use of sub-processors and a list of sub-processors authorised by the data controller.

8.          Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum security measures to be implemented by the data processor and how audits of the data processor and any sub-processors are to be performed.

9.          Appendix D contains provisions for other activities which are not covered by the Clauses.

10.      The Clauses along with appendices shall be retained in writing, including electronically, by both parties.

11.      The Clauses shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.

 

3. The rights and obligations of the data controller

 

1.          The data controller is responsible for ensuring that the processing of personal data takes place in compliance with the GDPR (see Article 24 GDPR), the applicable EU or Member State[5] data protection provisions and the Clauses.

 

2.          The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.

 

3.        The data controller shall be responsible, among other, for ensuring that the processing of personal data, which the data processor is instructed to perform, has a legal basis.

 

4.  The data processor acts according to instructions

 

1.        The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or Member State law to which the processor is subject. Such instructions shall be specified in appendices A and C. Subsequent instructions can also be given by the data controller throughout the duration of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically, in connection with the Clauses.

 

2.        The data processor shall immediately inform the data controller if instructions given by the data controller, in the opinion of the data processor, contravene the GDPR or the applicable EU or Member State data protection provisions.

 

[NOTE: THE PARTIES SHOULD FORESEE AND CONSIDER CONSEQUENCES WHICH MAY ARISE FROM ANY POTENTIALLY UNLAWFUL INSTRUCTIONS GIVEN BY THE DATA CONTROLLER AND REGULATE THIS IN AN AGREEMENT BETWEEN THE PARTIES.]

 

5.  Confidentiality

 

1.        The data processor shall only grant access to the personal data being processed on behalf of the data controller to persons under the data processor’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need to know basis. The list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.

 

2.        The data processor shall at the request of the data controller demonstrate that the concerned persons under the data processor’s authority are subject to the abovementioned confidentiality.

 

6.  Security of processing

 

1.        Article 32 GDPR stipulates that, 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, the data controller and data processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.

 

The data controller shall evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. Depending on their relevance, the measures may include the following:

a.                      Pseudonymisation and encryption of personal data;

 

b.                      the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing

systems and services;

 

c.                      the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;

 

d.                      a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

 

2.        According to Article 32 GDPR, the data processor shall also – independently from the data controller – evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. To this effect, the data controller shall provide the data processor with all information necessary to identify and evaluate such risks.

 

3.        Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controller’s obligations pursuant to Articles 32 GDPR, by inter alia providing the data controller with information concerning the technical and organisational measures already implemented by the data processor pursuant to Article 32 GDPR along with all other information necessary for the data controller to comply with the data controller’s obligation under Article 32 GDPR.

 

If subsequently – in the assessment of the data controller – mitigation of the identified risks require further measures to be implemented by the data processor, than those already implemented by the data processor pursuant to Article 32 GDPR, the data controller shall specify these additional measures to be implemented in Appendix C.

 

7.  Use of sub-processors

 

1.        The data processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).

 

2.        The data processor shall therefore not engage another processor (sub-processor) for the fulfilment of the Clauses without the prior [CHOICE 1] specific written authorisation] / [CHOICE 2] general written authorisation of the data controller.

 

3.        [OPTION 1 SPECIFIC PRIOR AUTHORISATION] The data processor shall engage sub-processors solely with the specific prior authorisation of the data controller. The data processor shall submit the request for specific authorisation at least [SPECIFY TIME PERIOD] prior to the engagement of the concerned sub-processor. The list of sub-processors already authorised by the data controller can be found in Appendix B.

 

[OPTION 2 GENERAL WRITTEN AUTHORISATION] The data processor has the data controller’s general authorisation for the engagement of sub-processors. The data processor shall inform in writing the data controller of any intended changes concerning the addition or replacement of sub-processors at least [SPECIFY TIME PERIOD] in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). Longer time periods of prior notice for specific sub-processing services can be provided in Appendix B. The list of sub-processors already authorised by the data controller can be found in Appendix B.

 

4.        Where the data processor engages a sub-processor for carrying out specific processing activities on behalf of the data controller, the same data protection obligations as set out in the Clauses shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Clauses and the GDPR.

 

The data processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the data processor is subject pursuant to the Clauses and the GDPR.

 

5.        A copy of such a sub-processor agreement and subsequent amendments shall – at the data controller’s request – be submitted to the data controller, thereby giving the data controller the opportunity to ensure that the same data protection obligations as set out in the Clauses are imposed on the sub-processor. Clauses on business related issues that do not affect the legal data protection content of the sub-processor agreement, shall not require submission to the data controller.

 

6.        The data processor shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of the data processor – the data controller shall be a third-party beneficiary to the sub-processor agreement and shall have the right to enforce the agreement against the sub-processor engaged by the data processor,

 

e.g. enabling the data controller to instruct the sub-processor to delete or return the personal data.

 

7.        If the sub-processor does not fulfil his data protection obligations, the data processor shall remain fully liable to the data controller as regards the fulfilment of the obligations of the sub-processor. This does not affect the rights of the data subjects under the GDPR – in particular those foreseen in Articles 79 and 82 GDPR – against the data controller and the data processor, including the sub-processor.

 

8.  Transfer of data to third countries or international organisations

 

1.          Any transfer of personal data to third countries or international organisations by the data processor shall only occur on the basis of documented instructions from the data controller and shall always take place in compliance with Chapter V GDPR.

 

2.          In case transfers to third countries or international organisations, which the data processor has not been instructed to perform by the data controller, is required under EU or Member State law to which the data processor is subject, the data processor shall inform the data controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.

 

3.          Without documented instructions from the data controller, the data processor therefore cannot within the framework of the Clauses:

 

a.                                  transfer personal data to a data controller or a data processor in a third country or in an international organization

 

b.                                  transfer the processing of personal data to a sub-processor in a third country

 

c.                                   have the personal data processed in by the data processor in a third country

 

4.          The data controller’s instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.

 

5.          The Clauses shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and the Clauses cannot be relied upon by the parties as a transfer tool under Chapter V GDPR.

 

9.  Assistance to the data controller

 

1.          Taking into account the nature of the processing, the data processor shall assist the data controller by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the data controller’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR.

 

This entails that the data processor shall, insofar as this is possible, assist the data controller in the data controller’s compliance with:

 

a.                                  the right to be informed when collecting personal data from the data subject

b.                                  the right to be informed when personal data have not been obtained from the data subject

c.                                   the right of access by the data subject

d.                                  the right to rectification

e.                                  the right to erasure (‘the right to be forgotten’)

f.                                    the right to restriction of processing

g.                                  notification obligation regarding rectification or erasure of personal data or restriction of processing

h.                                  the right to data portability

i.                                     the right to object

j.                                    the right not to be subject to a decision based solely on automated processing, including profiling

 

2.          In addition to the data processor’s obligation to assist the data controller pursuant to Clause 6.4., the data processor shall furthermore, taking into account the nature of the processing and the information available to the data processor, assist the data controller in ensuring compliance with:

 

a.                                  The data controller’s obligation to without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the competent supervisory authority, [PLEASE INDICATE THE COMPETENT SA], unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;

 

b.                                  the data controller’s obligation to without undue delay communicate the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons;

 

c.                                   the data controller’s obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a data protection impact assessment);

 

d.                                  the data controller’s obligation to consult the competent supervisory authority, [PLEASE INDICATE THE COMPETENT SA], prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the data controller to mitigate the risk.

 

3.          The parties shall define in Appendix C the appropriate technical and organisational measures by which the data processor is required to assist the data controller as well as the scope and the extent of the assistance required. This applies to the obligations foreseen in Clause 9.1. and 9.2.

 

10.   Notification of personal data breach

 

1.          In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the data controller of the personal data breach.

 

2.          The data processor’s notification to the data controller shall, if possible, take place within [NUMBER OF HOURS] after the data processor has become aware of the personal data breach to enable the data controller to comply with the data controller’s obligation to notify the personal data breach to the competent supervisory authority, cf. Article 33 GDPR.

 

3.          In accordance with Clause 9(2)(a), the data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, meaning that the data processor is required to assist in obtaining the information listed below which, pursuant to Article 33(3)GDPR, shall be stated in the data controller’s notification to the competent supervisory authority:

 

a.                                  The nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

 

b.                                  the likely consequences of the personal data breach;

 

c.                                   the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

 

4.          The parties shall define in Appendix D all the elements to be provided by the data processor when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.

 

11.   Erasure and return of data

 

1.          On termination of the provision of personal data processing services, the data processor shall be under obligation [OPTION 1] to delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so /[OPTION 2] to return all the personal data to the data controller and delete existing copies unless Union or Member State law requires storage of the personal data.

 

2.          [OPTIONAL] The following EU or Member State law applicable to the data processor requires storage of the personal data after the termination of the provision of personal data processing services:

 

a.[…]

 

The data processor commits to exclusively process the personal data for the purposes and duration provided for by this law and under the strict applicable conditions.

 

12.   Audit and inspection

 

1.          The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 and the Clauses and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.

 

2.          Procedures applicable to the data controller’s audits, including inspections, of the data processor and sub-processors are specified in appendices C.7. and C.8.

 

3.          The data processor shall be required to provide the supervisory authorities, which pursuant to applicable legislation have access to the data controller’s and data processor’s facilities, or representatives acting on behalf of such supervisory authorities, with access to the data processor’s physical facilities on presentation of appropriate identification.

 

13.   The parties’ agreement on other terms

 

1. The parties may agree other clauses concerning the provision of the personal data processing service specifying e.g. liability, as long as they do not contradict directly or indirectly the Clauses or prejudice the fundamental rights or freedoms of the data subject and the protection afforded by the GDPR.

 

14.   Commencement and termination

 

1.          The Clauses shall become effective on the date of both parties’ signature.

 

2.          Both parties shall be entitled to require the Clauses renegotiated if changes to the law or inexpediency of the Clauses should give rise to such renegotiation.

 

3.          The Clauses shall apply for the duration of the provision of personal data processing services. For the duration of the provision of personal data processing services, the Clauses cannot be terminated unless other Clauses governing the provision of personal data processing services have been agreed between the parties.

 

4.          If the provision of personal data processing services is terminated, and the personal data is deleted or returned to the data controller pursuant to Clause 11.1. and Appendix C.4., the Clauses may be terminated by written notice by either party.

 

5.          Signature

 

On behalf of the data controller

 

Name                      [NAME]

Position                 [POSITION]

Date                       [DATE]

Signature               [SIGNATURE]

 

On behalf of the data processor

 

Name                      [NAME]

Position                 [POSITION]

Date                       [DATE]

Signature               [SIGNATURE]

 

15.   Data controller and data processor contacts/contact points

 

1.          The parties may contact each other using the following contacts/contact points:

 

2.          The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.

 

Name                      [NAME]

Position                 [POSITION]

Telephone            [TELEPHONE]

E-mail                     [E-MAIL]

 

Name                      [NAME]

Position                 [POSITION]

Telephone            [TELEPHONE]

E-mail                     [E-MAIL]

Appendix A Information about the processing

 

[NOTE: IN CASE OF SEVERAL PROCESSING ACTIVITIES, THESE ELEMENTS MUST BE COMPLETED FOR EACH OF THE PROCESSING ACTIVITIES.]

 

A.1.    The purpose of the data processor’s processing of personal data on behalf of the data controller is:

 

[DESCRIBE THE PURPOSE OF THE PROCESSING].

 

A.2.    The data processor’s processing of personal data on behalf of the data controller shall mainly pertain to (the nature of the processing):

 

[DESCRIBE THE NATURE OF THE PROCESSING].

 

A.3.  The processing includes the following types of personal data about data subjects:

 

[DESCRIBE THE TYPE OF PERSONAL DATA BEING PROCESSED].

 

[FOR EXAMPLE]

 

“Name, e-mail address, telephone number, address, national identification number, payment details, membership number, type of membership, attendance at fitness centre and registration for specific fitness classes.”

 

[NOTE: DESCRIPTION SHOULD BE MADE IN THE MOST DETAILED POSSIBLE MANNER AND, IN ANY CIRCUMSTANCE, THE TYPES OF PERSONAL DATA MUST BE SPECIFIED FURTHER THAN MERELY “PERSONAL DATA AS DEFINED IN ARTICLE 4(1) GDPR” OR STATING WHICH CATEGORY (“ARTICLE 6, 9 OG 10 GDPR”) OF PERSONAL DATA IS SUBJECT TO PROCESSING.]

 

A.4.  Processing includes the following categories of data subject:

 

[DESCRIBE CATEGORY OF DATA SUBJECT].

 

A.5.    The data processor’s processing of personal data on behalf of the data controller may be performed when the Clauses commence. Processing has the following duration:

 

[DESCRIBE THE DURATION OF THE PROCESSING].

Appendix B Authorised sub-processors

 

B.1.  Approved sub-processors

On commencement of the Clauses, the data controller authorises the engagement of the following sub-processors:

 

NAME	CVR	ADDRESS	DESCRIPTION OF PROCESSING

 

The data controller shall on the commencement of the Clauses authorise the use of the abovementioned sub-processors for the processing described for that party. The data processor shall not be entitled – without the data controller’s explicit written authorisation – to engage a sub-processor for a ‘different’ processing than the one which has been agreed upon or have another sub-processor perform the described processing.

 

B.2.  Prior notice for the authorisation of sub-processors

 

[OPTIONAL] [IF APPLICABLE, DESCRIBE THE TIME PERIODS OF PRIOR NOTICE FOR

AUTHORISATION OF SUB-PROCESSORS]

 

Appendix C Instruction pertaining to the use of personal data

 

C.1.  The subject of/instruction for the processing

 

The data processor’s processing of personal data on behalf of the data controller shall be carried out by the data processor performing the following:

 

[DESCRIBE THE PROCESSING THAT THE DATA PROCESSOR HAS BEEN INSTRUCTED

TO PERFORM].

 

C.2.  Security of processing

The level of security shall take into account:

 

[TAKING INTO ACCOUNT THE NATURE, SCOPE, CONTEXT AND PURPOSES OF THE

PROCESSING ACTIVITY AS WELL AS THE RISK FOR THE RIGHTS AND FREEDOMS OF

NATURAL PERSONS, DESCRIBE ELEMENTS THAT ARE ESSENTIAL TO THE LEVEL OF

SECURITY]

[FOR EXAMPLE]

 

“That the processing involves a large volume of personal data which are subject to Article 9 GDPR on ‘special categories of personal data’ which is why a ‘high’ level of security should be established.”

 

The data processor shall hereafter be entitled and under obligation to make decisions about the technical and organisational security measures that are to be applied to create the necessary (and agreed) level of data security.

 

The data processor shall however – in any event and at a minimum – implement the following measures that have been agreed with the data controller:

 

[DESCRIBE REQUIREMENTS FOR PSEUDONYMISATION AND ENCRYPTION OF

PERSONAL DATA]

 

[DESCRIBE REQUIREMENTS FOR ENSURING ONGOING CONFIDENTIALITY,

INTEGRITY, AVAILABILITY AND RESILIENCE OF PROCESSING SYSTEMS AND

SERVICES]

 

[DESCRIBE REQUIREMENTS FOR THE ABILITY TO RESTORE THE AVAILABILITY AND

ACCESS TO PERSONAL DATA IN A TIMELY MANNER IN THE EVENT OF A PHYSICAL

OR TECHNICAL INCIDENT]

 

[DESCRIBE REQUIREMENTS FOR PROCESSES FOR REGULARLY TESTING,

ASSESSING AND EVALUATING THE EFFECTIVENESS OF TECHNICAL AND

ORGANISATIONAL MEASURES FOR ENSURING THE SECURITY OF THE PROCESSING]

 

[DESCRIBE REQUIREMENTS FOR ACCESS TO DATA ONLINE]

 

[DESCRIBE REQUIREMENTS FOR THE PROTECTION OF DATA DURING

TRANSMISSION]

 

[DESCRIBE REQUIREMENTS FOR THE PROTECTION OF DATA DURING STORAGE]

 

[DESCRIBE REQUIREMENTS FOR PHYSICAL SECURITY OF LOCATIONS AT WHICH

PERSONAL DATA ARE PROCESSED]

 

[DESCRIBE REQUIREMENTS FOR THE USE OF HOME/REMOTE WORKING]

 

[DESCRIBE REQUIREMENTS FOR LOGGING]

 

C.3.  Assistance to the data controller

 

The data processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the following technical and organisational measures:

 

[DESCRIBE THE SCOPE AND THE EXTENT OF THE ASSISTANCE TO BE PROVIDED BY THE DATA PROCESSOR]

 

[DESCRIBE THE SPECIFIC TECHNICAL AND ORGANISATIONAL MEASURES TO BE

TAKEN BY THE DATA PROCESSOR TO PROVIDE ASSISTANCE TO THE DATA

CONTROLLER]

 

C.4.  Storage period/erasure procedures

 

[STATE STORAGE PERIOD/ERASURE PROCEDURES FOR THE DATA PROCESSOR, IF APPLICABLE]

 

[FOR EXAMPLE]

 

“Personal data is stored for [STATE TIME PERIOD OR INCIDENT] after which the personal data is automatically erased by the data processor.

 

Upon termination of the provision of personal data processing services, the data processor shall either delete or return the personal data in accordance with Clause 11.1., unless the data controller – after the signature of the contract – has modified the data controller’s original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the Clauses.”

 

C.5.  Processing location

 

Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controller’s prior written authorisation:

 

[STATE WHERE PROCESSING TAKES PLACE] [STATE THE DATA PROCESSOR OR

SUB-PROCESSOR USING THE ADDRESS]

 

C.6.  Instruction on the transfer of personal data to third countries

 

[DESCRIBE AN INSTRUCTION ON THE TRANSFER OF PERSONAL DATA TO A THIRD COUNTRY OR INTERNATIONAL ORGANISATION]

 

[STATE THE LEGAL BASIS FOR TRANSFER PURSUANT TO CHAPTER V GDPR]

 

pertaining to the transfer of personal data to a third country, the data processor shall not be entitled within the framework of the Clauses to perform such transfer.

 

C.7.       Procedures for the data controller’s audits, including inspections, of the processing of personal data being performed by the data processor

 

[DESCRIBE PROCEDURES FOR THE DATA CONTROLLER'S AUDITS, INCLUDING

INSPECTIONS, OF THE PROCESSING OF PERSONAL DATA BY THE DATA

PROCESSOR]

 

For example:

 

“The data processor shall [STATE TIME PERIOD]at

CONTROLLER’S] expense obtain an [AUDITOR’S REPORT/INSPECTION REPORT] from an

independent third party concerning the data processor's compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.

 

The parties have agreed that the following types of [AUDITOR’S REPORT/INSPECTION REPORT] may be used in compliance with the Clauses:

 

[INSERT ‘APPROVED’ AUDITOR’S REPORTS/INSPECTION REPORTS]

 

The [AUDITOR’S REPORT/INSPECTION REPORT] shall without undue delay be submitted to the data controller for information. The data controller may contest the scope and/or methodology of the report and may in such cases request a new audit/inspection under a revised scope and/or different methodology.

 

Based on the results of such an audit/inspection, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.

 

The data controller or the data controller’s representative shall in addition have access to inspect, including physically inspect, the places, where the processing of personal data is carried out by the data processor, including physical facilities as well as systems used for and related to the processing. Such an inspection shall be performed, when the data controller deems it required.”

 

[OR]

 

“The data controller or the data controller’s representative shall [STATE TIME PERIOD] perform a physical inspection of the places, where the processing of personal data is carried out by the data processor, including physical facilities as well as systems used for and related to the processing to ascertain the data processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.

 

In addition to the planned inspection, the data controller may perform an inspection of the data processor when the data controller deems it required”

 

[AND, IF APPLICABLE]

the data controller. The data processor shall, however, be under obligation to set aside the resources (mainly time) required for the data controller to be able to perform the inspection.”

 

C.8.    [IF APPLICABLE] Procedures for audits, including inspections, of the processing of personal data being performed by sub-processors

 

[IF APPLICABLE, DESCRIBE PROCEDURES FOR THE DATA CONTROLLER'S AUDITS,

INCLUDING INSPECTIONS, OF PROCESSING OF PERSONAL DATA BY THE SUB-

PROCESSOR]

 

[FOR EXAMPLE]

 

“The data processor shall [STATE TIME PERIOD] at [THE DATA PROCESSOR’S/THE DATA

CONTROLLER’S] expense obtain an [AUDITOR’S REPORT/INSPECTION REPORT] from an

independent third party concerning the sub-processor's compliance with the GDPR, the

applicable EU or Member State data protection provisions and the Clauses.

 

The parties have agreed that the following types of [AUDITOR’S REPORT/INSPECTION REPORT] may be used in compliance with the Clauses:

 

[INSERT ‘APPROVED’ AUDITOR’S REPORTS/INSPECTION REPORTS]

 

The [AUDITOR’S REPORT/INSPECTION REPORT] shall without undue delay be submitted to the data controller for information. The data controller may contest the scope and/or methodology of the report and may in such cases request a new audit/inspection under a revised scope and/or different methodology.

 

Based on the results of such an audit/inspection, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.

 

The data processor or the data processor’s representative shall in addition have access to inspect, including physically inspect, the places, where the processing of personal data is carried out by the sub-processor, including physical facilities as well as systems used for and related to the processing. Such an inspection shall be performed, when the data processor (or the data controller) deems it required.

 

Documentation for such inspections shall without delay be submitted to the data controller for information. The data controller may contest the scope and/or methodology of the report and may in such cases request a new inspection under a revised scope and/or different methodology.”

 

[OR]

 

“The data processor or the data processor’s representative shall [STATE TIME PERIOD] perform a physical inspection of the places, where the processing of personal data is carried out by the sub-processor, including physical facilities as well as systems used for and related to the processing to ascertain the sub-processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.

processor when the data processor (or the data controller) deems it required.

 

Documentation for such inspections shall without undue delay be submitted to the data controller for information. The data controller may contest the scope and/or methodology of the report and may in such cases request a new inspection under a revised scope and/or different methodology.

 

Based on the results of such an inspection, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.”

 

[AND, IF APPLICABLE]

“The data controller may – if required – elect to initiate and participate in a physical inspection of the sub-processor. This may apply if the data controller deems that the data processor’s supervision of the sub-processor has not provided the data controller with sufficient documentation to determine that the processing by the sub-processor is being performed according to the Clauses.

 

The data controller’s participation in an inspection of the sub-processor shall not alter the fact that the data processor hereafter continues to bear the full responsibility for the sub- processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.”

 

[AND, IF APPLICABLE]

 

“The data processor’s and the sub-processor’s costs related to physical supervision/inspection at the sub-processor’s facilities shall not concern the data controller – irrespective of whether the data controller has initiated and participated in such inspection.”

Appendix D The parties’ terms of agreement on other subjects

 

 

 

 

 

 

 

 

 

 

 

 

 

8

Exhibit 3 Security Requirements and Technical and Organizational Measures

 

 

 

INTRODUCTION

 

This document describes the technical and organizational measures and processes that the Supplier, shall, at a minimum, implement and maintain in order to protect MGI Data (as defined in the DPA) against risks inherent in the Processing and all unlawful forms of Processing, including but not limited to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to MGI Data transmitted, stored or otherwise processed. Supplier shall keep any necessary written records and documentation (including in electronic form) to evidence its compliance with these technical and organizational security measures and shall make them immediately available to MGI on request.

 

The security measures described in this document apply without prejudice to any other Data Protection Requirements for technical and organizational measures that may be applicable to Supplier or the Products and Services.

 

1.    DEFINITIONS

 

a)    Incident or Security Incident: Any event or set of events that indicates an attack upon, unauthorized use of, or attempt to compromise computing or ing systems that may lead to a Data Breach.

b)    Internal Systems: Devices that perform computing or services to provide or support Supplier’s

Services.

c)    Information Systems: Information technology resources providing services that transmit, process, handle, store, modify, or make available for access MGI Data and provide Services pursuant to the Contract.

d)    MGI Systems: devices and information technology resources owned, operated, or otherwise made available to Supplier by MGI that transmit, process, handle, store,  modify,  or  make  available  for access MGI Data.

e)    Data Breach: A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, MGI Data transmitted, stored or otherwise processed.

f)     Strong Authentication: Use of authentication mechanisms and authentication methodologies stronger than passwords as herein. Strong Authentication methods could include one-time passwords, multi-factor authentication, or digital certificates with passphrases on the private key.

 

2.    SYSTEM SECURITY

 

a)     Access Controls. Supplier shall implement and maintain the following access controls to prevent any unlawful form of Processing (including but not limited to unauthorized use, access or disclosure of MGI Data) and Data Breaches.

i.     Unique user IDs must be assigned to all individual users.

ii.     Procedures for timely access removal must be implemented and regularly assessed.

iii.   The principles of least privilege and need to know must be implemented and followed.

iv.   The principles of least privilege and need to know must be regularly reviewed on a periodic basis (e.g. regular account and access reviews).

v.     Passwords:

(1)    All passwords have the following attributes:

• Minimum length of 12 characters.
• Complexity must include at least three of the following four criteria (i) one uppercase letter, (ii) one lowercase letter, (iii) one number, and (iv) one special character.
• Changed at least once every ninety (90) days.

MGI Data Protection Agreement 03182020

• Passwords cannot be any of the five (5) previous passwords.
• Initial or temporary passwords must be changed after first use.
• Default passwords must be changed upon deployment.
• Passwords must never sent in clear text format.
• Passwords must not be shared amongst users.

(2)  Authentication:

• Authentication credentials must be protected by encryption during transmission.
• Login attempts must be limited to no more than five (5) consecutive failed attempts with user account being locked out for at least five (5) minutes upon reaching such limit.
• Remote administration access, by the Supplier, to the Supplier’s Information Systems that can access MGI Data shall use two (2) factor authentication.

(3)  Sessions:

• Must automatically terminate sessions or activate a password-protected screensaver when user sessions are inactive for fifteen (15) minutes.
• Management systems such as jump stations or bastion hosts must time out sessions at regular intervals, not to exceed twelve (12) hours.

b)    Scanning and Administration. Supplier implements the following controls to maintain the security and integrity of Information Systems utilized in Processing MGI Data.

i.     Supplier shall use industry security resources (e.g., National Vulnerability Database “NVD”,

CERT/CC Advisories) to monitor for security alerts.

ii.     Supplier shall receive security advisories from their third party vendors.

iii.     Internal and external facing systems must be regularly scanned with industry standard security vulnerability scanning software to identify security vulnerabilities.

iv.     Discovered vulnerabilities must be remediated as follows a) Critical vulnerabilities within seven (7) days,

b) High vulnerabilities within fourteen (14) days, c) Medium vulnerabilities within thirty (30) days, and d) Low vulnerabilities as necessary based on risk impact to Information Systems.

v.     Information Systems must have appropriate security hardening (e.g. CIS benchmarks) applied before deployment and maintained thereafter.

vi.     Systems and applications must log security events.

vii.     Logs must provide sufficient details as required in an investigation of events.

viii.     Logs must be maintained for a minimum of twelve (12) months.

ix.     Logs must be monitored on a regular basis.

x.     A patch management program must be maintained to ensure up-to-date security patches are appropriately applied to Information Systems.

xi.     Anti-malware controls must be implemented and signature based tools must check for new updates at least daily.

xii.     A formal, documented change control process must be implemented for Information Systems.

 

3.    SECURITY

 

a)    . Supplier implements and maintains  security measures including the following.

i.     Supplier’s WiFi must be secured using secure encryption protocols.

ii.     Firewalls must implement a default deny methodology.

iii.     A DMZ must be implemented to separate backend systems from Internet facing systems.

iv.     A three-tier architecture must separate database systems from web application servers.

v.     Changes to the  must be sufficiently tested.

vi.     An intrusion detection or prevention system must be implemented that covers traffic to the Information Systems.

(1)    The events and alerts generated must be regularly reviewed.

 

4.    END USER DEVICES

 

a)    Laptops and desktops used by Supplier personnel that may come into contact with MGI Data must meet the following requirements:

i.     Full-disk encryption must be implemented.

b)    Smartphones and Tablets must not be allowed to access, process, or store MGI Data.

c)    Bring Your Own Device (BYOD)

i.     If allowed on Supplier’s premises or , Supplier must have a published policy regarding their use.

ii.     BYOD or personally-owned devices must not be allowed to access, process, or store MGI Data as well as administer Information Systems that have MGI Data.

 

5.    INFORMATION AND DATA SECURITY

 

a)    Information Security Policy

i.     Supplier must implement an Information Security Policy that is reviewed at least annually.

ii.     Subprocessor must have an Information Security Policy that is approved by the CISO, CIO or appropriate executive.

iii.  In the event Supplier accesses MGI Systems, whether to process MGI Data or for any other reason, Supplier shall comply with MGI’s then-current Information Security Policy.

iv.  In the event Supplier processes MGI Data using its Information Systems, Internal Systems, or other Supplier resources, Supplier shall implement and maintain the controls and practices set forth in this Exhibit.

v.      Supplier’s Subprocessors and other subcontractors must comply with the requirements outlined in this Exhibit.

b)    Data Protection Requirements

i.      Transport

(1)      Encrypt the transfer of MGI Data, including backups, over external s.

(2)      Encrypt MGI Data when transferred via physical media.

ii.      Storage

(1)      Encrypt MGI Data, including backups, at rest.

iii.      Business Continuity

(1)      A documented business continuity plan must be documented and implemented, and must be tested at least annually.

iv.      Backup and Recovery

(1)      Supplier must have documented and implemented backup procedures.

(2)      Supplier must have a documented disaster recovery plan that is tested at least annually.

v.      Retention, Erasure, Destruction and Return

(1)      Supplier may retain MGI Data only as required by Data Protection Requirements.

(2)      Have a documented and implemented policy for retention, secure erasure, destruction, or return of MGI Data.

(3)      Information assets containing MGI Data must be either destroyed or securely erased at the end of their lifecycle..

vi.      Job Control

(1)      Implement suitable measures to ensure that, in the case of commissioned processing of MGI Data, the MGI Data are processed strictly in accordance with the instructions of MGI. This shall be accomplished as follows:

• Measures are implemented to ensure that MGI' instructions regarding processing of MGI Data will be followed and brought to the attention of the staff dealing with the processing of MGI Data;
• MGI will be granted regular access and control rights upon request as more closely defined in the Contract; and

vii.      Separation of processing for different purposes

(1)      To ensure MGI Data is only available to authorized persons, implement suitable measures to separately process data collected for different purposes. This shall be accomplished as follows:

• access to MGI Data is separated through application security for the appropriate users;
• within the database, MGI Data is adequately protected to ensure it is only available to applicable authorized persons;
• interfaces, batch processes, and reports is designed for only specific purposes and functions, so data collected for specific purposes is processed separately.

viii.      Customer separation

MGI Data must be logically or physically separated from Supplier data of its other customers.

ix.      Data Classification

(1)      A data classification policy and handling practices policy must be documented and implemented to protect MGI Data.

x.      Third parties

(1)      Third parties may only be granted access to MGI Data only upon MGI’ express prior written permission for each case or as permitted under the Contract (e.g., as regards commissioning of subcontractors).

 

6.    INCIDENT RESPONSE

 

a)    Plan and Point of Contact:

i.      A documented incident response plan must be maintained and tested at least annually.

ii.      A helpline or e-mail contact must be provided for employees or contractors to report security incidents.

iii.      Determine if an incident has resulted in a Data Breach or is reasonably suspected to have resulted in a Data Breach and take immediate actions to mitigate it.

b)    Data Breach notification.

i.      Notification to MGI of a Data Breach must occur without undue delay and no later than twenty-four

(24) hours after becoming aware of it. Data Breach notification must include:

(1)      What happened and how many records are involved.

(2)      The measures and mitigation steps taken or planned to be taken to address the Data Breach.

(3)      The name and contact details for more information about the Data Breach.

 

7.    SECURE DEVELOPMENT

 

Supplier must implement and follow controls associated with the development, pre-production testing and delivery of any and all Services provided to MGI. For this section, Software or Hardware means the result of development, design, installation, configuration, production, or manufacture of computing code or devices that support or implement the Services. These secure development practices shall include the following:

a)    Development requirements.

i.      Develop, implement, and comply with industry-standard secure coding best practices.

ii.      Follow industry-standard best practices to mitigate and protect against known and reasonably predictable security vulnerabilities, including but not limited to:

(1)      unauthorized access

(2)      unauthorized changes to system configurations or data

(3)      disruption, degradation, or denial of service

(4)      unauthorized escalation of user privilege

(5)      service fraud

(6)      improper disclosure of MGI data

iii.      Separate test and stage environments from the production environment.

iv.      Non-production systems must not contain production data.

v.      Scan source code for security vulnerabilities prior to release to production.

vi.      Test applications for security vulnerabilities prior to release to production.

b)    Open source and third party software.

i.      Industry-standard processes must be implemented to ensure that any open-source or third party software included in Supplier’s software or hardware does not undermine the security posture of the Supplier or MGI.

 

8.    AUDITS OR ASSESSMENTS

 

a)         Supplier security audits or assessments.

i.       Must be performed at least annually.

ii.      Must be performed against the ISO 27001 standard, SOC2 standard or other equivalent, alternative standards.

iii.      Must be performed by a reputable, independent third party at Supplier’s selection and expense.

iv.      Must result in the generation of an audit report or certification that will be made available to MGI on request.

v.      An annual penetration test must be performed by a third party.

 

9.    TRAINING

 

a)    Security and privacy training.

i.      Information security and privacy training or awareness communications must be provided to all personnel with access to MGI Data upon hire and subsequently at least once per year. The content should include but not be limited to company and policy requirements, security risks, and user responsibilities.

 

10. PHYSICAL SECURITY

 

a)    Program and facilities.

i.      A physical security program must be maintained in accordance with industry standards and best practices.

ii.      Only secure data center facilities must be used to store MGI Data, including those with SSAE 18 for data centers that process MGI Data that includes financial information, or AT 101 for data centers that process other MGI Data, or similar reports.

 

 

 

 

 

Data Protection Agreement Suppliers/Sub-processors

 

 

This Data Protection Agreement (“Data Protection Agreement” or “DPA”) is entered into by and between [MGI INTERNATIONAL SALES CO., LTD., with registered offices at Flat/Rm A, 26/F Kings Wing Plaza 2, No. 1 on Kwan Street, Sha Tin, N.T Hong Kong] (“MGI”) and the supplier named [below] (“Supplier”). Supplier has been engaged to provide [products and/or services name] (the “Products and Services”) to MGI and/or any of its direct and indirect affiliates in accordance with a [Software License Agreement] dated on [     ] (the “Contract”).

 

MGI and Supplier agree as follows:

 

13. Definitions. Terms used in this DPA shall have the meaning indicated below unless otherwise defined in this DPA or in applicable laws or regulations.

 

13.1                    “Data Protection Requirements” shall mean any laws, regulations, statutes, directives, orders, rules, or contractual requirements related to the Processing of MGI Data by Supplier or by the Products and Services including but not limited to EU General Data Protection Regulation with effect from 25 May 2018;

 

13.2                    “MGI” shall mean MGI and any of its affiliates to whom Supplier provides the Products and Services;

 

13.3                    “MGI Data” shall mean any Personal Data and any Confidential Information (as such term is defined in the Contract or applicable law) of MGI and any MGI employees, contractors, customers, or partners that is Processed by Supplier or the Products and Services;

 

13.4                    “Personal Data” shall mean (i) any information or data that alone or together with any other data or information relates to an identified or identifiable natural person and (ii) any other information or data considered to be personally identifiable information, personal data or personal information under applicable law.

 

1.4 “Processing” shall mean any operation or set of operations performed on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

 

14. Processing Solely for MGI; No Sale of Personal Data: Supplier will Process MGI Data only on behalf of MGI and in compliance with MGI’s written instructions, the Contract and this DPA. If additional Processing is required by applicable Data Protection Requirements, Supplier shall inform MGI of the applicable requirement in writing before such Processing (to the extent permitted by applicable law). No Personal Data is Processed by Supplier as consideration for any products or services provided to MGI. Supplier is prohibited from “selling” any Personal Data of MGI, as the term "sell" or its equivalent is defined in applicable Data Protection Requirements.

 

15. Compliance with applicable Data Protection Requirements: Supplier agrees to comply with the Data Protection Requirements applicable to the Processing of MGI Data by Supplier and by the Products and Services under the Contract and this DPA. Supplier shall inform MGI if, in its opinion, an instruction from MGI would violate applicable Data Protection Requirements.
16. Sub-processors: MGI grants its general advance written permission for Supplier to delegate Processing to sub-processors (“Sub-processors”), subject to this DPA and Exhibit 1. Supplier shall impose MGI’s Data Protection Agreement on any Sub-processors with contractual obligations no less stringent than the requirements applicable to Supplier under the Contract and this DPA.

 

17. Monitoring: Upon written request of MGI, Supplier shall provide a report (together with any underlying materials referenced therein) to MGI regarding its compliance with Data Protection Requirements applicable to Supplier’s Processing of MGI Data and the Products and Services and this DPA. MGI shall also have the right to carry out on-site audits during regular business hours, without disrupting Supplier’s business operations and in accordance with Supplier’s reasonable and written security policies, and after reasonable prior notice.

 

18. Data Secrecy: Supplier shall protect the confidentiality of MGI Data Processed and shall not disclose MGI Data to any third parties unless authorized by MGI. Supplier shall limit access to MGI Data to those persons who need access to meet Supplier's obligations under this DPA and the Contract. Supplier shall ensure that all persons who Process MGI Data for Supplier have appropriate written or legal confidentiality obligations. Data secrecy requirements shall continue even after expiration or termination of this DPA and/or the Contract.

 

19. Security Measures: Supplier shall ensure that it complies with all security measures required pursuant to applicable Data Protection Requirements, the Contract and this DPA, including the Security Requirements and Technical and Organizational Measures described in [Exhibit 3] , and with any data protection measures that Supplier identified in response to any MGI vendor on-boarding [criteria]. Suppliers of Products and Services that MGI or its partners resell or distribute to customers shall also comply with any specific security requirements identified by MGI in any written notice to Supplier as being applicable to such Products or Services.

 

20. Security Incident Notifications: Supplier will notify MGI in writing promptly and in no event later than the time period required under any applicable Data Protection Requirements, of any data breach or security incident that is likely to have an impact on the availability, integrity and/or confidentiality of the MGI Data Processed by Supplier or the Products and Services. Such notice must contain as a minimum the scope of the MGI Data affected, the scope and number of data subjects affected, the time when the data breach took place, the circumstances and the effects of the data breach, the measures taken to eliminate the consequences of the breach, and any further information the Data Exporter and/or MGI may require to comply with applicable national law.

 

21. Cooperation: Supplier shall notify MGI of data subject requests regarding any Personal Data included in the MGI Data and, upon request by MGI, shall provide reasonable assistance to MGI in responding to such inquiries or requests in a timely manner. Upon request, Supplier shall promptly provide reasonably appropriate assistance with obligations under applicable Data Protection Requirements such as audits, assessments, inspections, data protection impact assessments, notifications of security incidents and consultations with legal and regulatory authorities.

 

22. Data Export: Upon MGI's written request, Supplier shall provide a list of countries in which it Processes any MGI Data. To the extent required under applicable Data Protection Requirements, Processing of any Personal Data of MGI by Supplier will be subject to the Standard Contractual Clauses as per European Commission Decision 2010/87/EU of February 5, 2010 which are incorporated by reference into this DPA as Exhibits [1] (“Model Contract”), or any other mechanism applicable under such Data Protection Requirements. In the event of any conflict between the Model Contract and this DPA or any other agreement between MGI and Supplier, the Model Contract shall prevail.

 

23. Data Retention: Supplier shall not store MGI Data for a period longer than required by the purpose of the Contract. Upon the expiration or termination of this DPA or the Contract, and unless otherwise instructed by MGI, Supplier shall securely return to MGI or destroy, without undue delay, all MGI Data in any format, unless and solely to the extent that retention is required under applicable law.

Supplier shall provide MGI with written confirmation of such return or destruction.

 

24. Conflicts. In case of conflict between applicable Data Protection Requirements and any provisions of this DPA related to any Personal Data that is Processed under the Contract, then such Data Protection Requirements shall apply and prevail solely with respect to the relevant Personal Data, and solely to the extent necessary to resolve such conflict with this DPA.

 

By signing below, each party indicates its agreement to be bound by this DPA, including Exhibits.

 

* * *Signature Page Follows * * *

 

 

 

MGI INTERNATIONAL SALES CO., LTD.

by

Date:

Signature:

SUPPLIER:          _                       

by

Name:                    

Position:                    

Date:                    

Signature:                    

 

 

 

EXHIBITS:

 

Exhibit 1Data Transfer Agreement Template

Exhibit 2Data Process Agreement Template

Exhibit 3Security Requirements and Technical and Organizational Measures

 

 

 

 

[1] Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the  contract to stand alone.

[2] 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.

[3]  This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

[4] Paragraph on liabilities is optional.

[5] References to ”Member States” made throughout the Clauses shall be understood as references to “EEA Member States”.