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AWS GDPR DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) supplements the AWS Customer Agreement available at
http://aws.amazon.com/agreement,
as updated from time to time between Customer and AWS, or other
agreement between Customer and AWS governing Customer’s use of the Service Offerings (the
“Agreement”) when the GDPR applies to your use of the AWS Services to process Customer Data. This
DPA is an agreement between you and the entity you represent (“Customer”, “you” or “your”) and the
applicable Amazon Web Services contracting entity under the Agreement (“AWS”). Unless otherwise
defined in this DPA or in the Agreement, all capitalised terms used in this DPA will have the meanings
given to them in Section 17 of this DPA.
1.
Data Processing.
1.1
Scope and Roles.
This DPA applies when Customer Data is processed by AWS. In this
context, AWS will act as “processor” to Customer who may act either as “controller” or
“processor” with respect to Customer Data (as each term is defined in the GDPR).
Customer Controls.
The Services provide Customer with a number of controls, including
security features and functionalities, that Customer may use to retrieve, correct, delete
or restrict Customer Data as described in the Documentation. Without prejudice to
Section 5.1, Customer may use these controls as technical and organisational measures
to assist it in connection with its obligations under the GDPR, including its obligations
relating to responding to requests from data subjects.
Details of Data Processing.
1.3.1
1.3.2
1.3.3
1.3.4
1.3.5
1.3.6
1.4
2.
1.2
1.3
Subject matter.
The subject matter of the data processing under this DPA is
Customer Data.
Duration.
As between AWS and Customer, the duration of the data processing
under this DPA is determined by Customer.
Purpose.
The purpose of the data processing under this DPA is the provision of
the Services initiated by Customer from time to time.
Nature of the processing:
Compute, storage and such other Services as described
in the Documentation and initiated by Customer from time to time.
Type of Customer Data:
Customer Data uploaded to the Services under
Customer’s AWS accounts.
Categories of data subjects:
The data subjects may include Customer’s
customers, employees, suppliers and end-users.
Compliance with Laws.
Each party will comply with all laws, rules and regulations
applicable to it and binding on it in the performance of this DPA, including the GDPR.
Customer Instructions.
The parties agree that this DPA and the Agreement (including the
provision of instructions via configuration tools such as the AWS management console and APIs
made available by AWS for the Services) constitute Customer’s documented instructions
regarding AWS’s processing of Customer Data (“Documented
Instructions”).
AWS will process
Customer Data only in accordance with Documented Instructions. Additional instructions outside
the scope of the Documented Instructions (if any) require prior written agreement between AWS
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and Customer, including agreement on any additional fees payable by Customer to AWS for
carrying out such instructions. Customer is entitled to terminate this DPA and the Agreement if
AWS declines to follow instructions requested by Customer that are outside the scope of, or
changed from, those given or agreed to be given in this DPA.
3.
Confidentiality of Customer Data.
AWS will not access or use, or disclose to any third party, any
Customer Data, except, in each case, as necessary to maintain or provide the Services, or as
necessary to comply with the law or a valid and binding order of a governmental body (such as a
subpoena or court order). If a governmental body sends AWS a demand for Customer Data, AWS
will attempt to redirect the governmental body to request that data directly from Customer. As
part of this effort, AWS may provide Customer’s basic contact information to the government
body. If compelled to disclose Customer Data to a government body, then AWS will give Customer
reasonable notice of the demand to allow Customer to seek a protective order or other
appropriate remedy unless AWS is legally prohibited from doing so. If the Standard Contractual
Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.
Confidentiality Obligations of AWS Personnel.
AWS restricts its personnel from processing
Customer Data without authorisation by AWS as described in the AWS Security Standards. AWS
imposes appropriate contractual obligations upon its personnel, including relevant obligations
regarding confidentiality, data protection and data security.
Security of Data Processing
5.1
AWS has implemented and will maintain the technical and organisational measures for
the AWS Network as described in the AWS Security Standards and this Section. In
particular, AWS has implemented and will maintain the following technical and
organisational measures:
(a)
(b)
(c)
(d)
security of the AWS Network as set out in Section 1.1 of the AWS Security
Standards;
physical security of the facilities as set out in Section 1.2 of the AWS Security
Standards;
measures to control access rights for AWS employees and contractors in relation
to the AWS Network as set out in Section 1.1 of the AWS Security Standards; and
processes for regularly testing, assessing and evaluating the effectiveness of the
technical and organisational measures implemented by AWS as described in
Section 2 of the AWS Security Standards.
4.
5.
5.2
Customer may elect to implement technical and organisational measures in relation to
Customer Data. Such technical and organisational measures include the following which
may be obtained by Customer from AWS as described in the Documentation, or directly
from a third party supplier:
(a)
(b)
pseudonymisation and encryption to ensure an appropriate level of security;
measures to ensure the ongoing confidentiality, integrity, availability and
resilience of the processing systems and services that are being operated by
Customer;
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(c)
measures to allow Customer to backup and archive appropriately in order to
restore availability and access to Customer Data in a timely manner in the event
of a physical or technical incident; and
processes for regularly testing, assessing and evaluating the effectiveness of the
technical and organisational measures implemented by Customer.
(d)
6.
Sub-processing.
6.1
Authorised Sub-processors.
Customer agrees that AWS may use sub-processors to fulfill
its contractual obligations under this DPA or to provide certain services on its behalf, such
as providing support services.
The AWS website (currently posted at
https://aws.amazon.com/compliance/sub-processors/) lists sub-processors that are
currently engaged by AWS to carry out processing activities on Customer Data on behalf
of Customer. At least 30 days before AWS engages any new sub-processor to carry out
processing activities on Customer Data on behalf of Customer, AWS will update the
applicable website and provide Customer with a mechanism to obtain notice of that
update. If Customer objects to a new sub-processor, then without prejudice to any
termination rights Customer has under the Agreement and subject to the applicable
terms and conditions, Customer may move the relevant Customer Data to another AWS
Region where the new sub-processor to whom Customer objects, is not engaged by AWS
as a sub-processor. Customer consents to AWS’s use of sub-processors as described in
this Section. Except as set forth in this Section, or as Customer may otherwise authorise,
AWS will not permit any sub-processor to carry out processing activities on Customer Data
on behalf of Customer.
Sub-processor Obligations.
Where AWS authorises any sub-processor as described in
Section 6.1:
(i)
AWS will restrict the sub-processor’s access to Customer Data only to what is
necessary to maintain the Services or to provide the Services to Customer and
any End Users in accordance with the Documentation and AWS will prohibit the
sub-processor from accessing Customer Data for any other purpose;
AWS will enter into a written agreement with the sub-processor and, to the
extent that the sub-processor is performing the same data processing services
that are being provided by AWS under this DPA, AWS will impose on the sub-
processor the same contractual obligations that AWS has under this DPA; and
AWS will remain responsible for its compliance with the obligations of this DPA
and for any acts or omissions of the sub-processors that cause AWS to breach any
of AWS’s obligations under this DPA.
6.2
(ii)
(iii)
7.
Data Subject Rights
Taking into account the nature of the Services, AWS offers Customer certain controls as described
in Sections 1.2 and 5.2 that Customer may elect to use to comply with its obligations towards data
subjects. Should a data subject contact AWS with regard to correction or deletion of its personal
data, AWS will use commercially reasonable efforts to forward such requests to Customer.
8.
Optional Security Features.
AWS makes available a number of security features and
functionalities that Customer may elect to use. Customer is responsible for (a) implementing the
measures described in Section 5.2, as appropriate, (b) properly configuring the Services, (c) using
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the controls available in connection with the Services (including the security controls) to allow
Customer to restore the availability and access to Customer Data in a timely manner in the event
of a physical or technical incident (e.g. backups and routine archiving of Customer Data), and (d)
taking such steps as Customer considers adequate to maintain appropriate security, protection,
and deletion of Customer Data, which includes use of encryption technology to protect Customer
Data from unauthorised access and measures to control access rights to Customer Data.
9.
Security Breach Notification.
9.1
Security Incident.
AWS will (a) notify Customer of a Security Incident without undue
delay after becoming aware of the Security Incident, and b) take reasonable steps to
mitigate the effects and to minimise any damage resulting from the Security Incident.
AWS Assistance.
To assist Customer in relation to any personal data breach notifications
Customer is required to make under the GDPR, AWS will include in the notification under
section 9.1(a) such information about the Security Incident as AWS is reasonably able to
disclose to Customer, taking into account the nature of the Services, the information
available to AWS, and any restrictions on disclosing the information, such as
confidentiality.
Unsuccessful Security Incidents.
Customer agrees that:
(i)
an unsuccessful Security Incident will not be subject to this Section 9. An
unsuccessful Security Incident is one that results in no unauthorised access to
Customer Data or to any of AWS’s equipment or facilities storing Customer Data,
and may include, without limitation, pings and other broadcast attacks on
firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of
service attacks, packet sniffing (or other unauthorised access to traffic data that
does not result in access beyond headers) or similar incidents; and
AWS’s obligation to report or respond to a Security Incident under this Section 9
is not and will not be construed as an acknowledgement by AWS of any fault or
liability of AWS with respect to the Security Incident.
9.2
9.3
(ii)
9.4
Communication.
Notification(s) of Security Incidents, if any, will be delivered to one or
more of Customer’s administrators by any means AWS selects, including via email. It is
Customer’s sole responsibility to ensure Customer’s administrators maintain accurate
contact information on the AWS management console and secure transmission at all
times.
10.
AWS Certifications and Audits.
10.1
AWS ISO-Certification and SOC Reports.
In addition to the information contained in this
DPA, upon Customer’s request, and provided that the parties have an applicable NDA in
place, AWS will make available the following documents and information:
(i)
the certificates issued in relation to the ISO 27001 certification, the ISO 27017
certification and the ISO 27018 certification (or the certifications or other
documentation evidencing compliance with such alternative standards as are
substantially equivalent to ISO 27001, ISO 27017 and ISO 27018); and
the System and Organization Controls (SOC) 1 Report, the System and
Organization Controls (SOC) 2 Report and the System and Organization Controls
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(ii)
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(SOC) 3 Report (or the reports or other documentation describing the controls
implemented by AWS that replace or are substantially equivalent to the SOC 1,
SOC 2 and SOC 3).
10.2
AWS Audits.
AWS uses external auditors to verify the adequacy of its security measures,
including the security of the physical data centers from which AWS provides the Services.
This audit: (a) will be performed at least annually; (b) will be performed according to ISO
27001 standards or such other alternative standards that are substantially equivalent to
ISO 27001; (c) will be performed by independent third party security professionals at
AWS’s selection and expense; and (d) will result in the generation of an audit report
(“Report”), which will be AWS’s Confidential Information.
Audit Reports.
At Customer’s written request, and provided that the parties have an
applicable NDA in place, AWS will provide Customer with a copy of the Report so that
Customer can reasonably verify AWS’s compliance with its obligations under this DPA.
Privacy Impact Assessment and Prior Consultation.
Taking into account the nature of the
Services and the information available to AWS, AWS will assist Customer in complying
with Customer’s obligations in respect of data protection impact assessments and prior
consultation pursuant to Articles 35 and 36 of the GDPR, by providing the information
AWS makes available under this Section 10.
10.3
10.4
11.
Customer Audits.
Customer agrees to exercise any right it may have to conduct an audit or
inspection, including under the Standard Contractual Clauses if they apply, by instructing AWS to
carry out the audit described in Section 10. If Customer wishes to change this instruction
regarding the audit, then Customer has the right to request a change to this instruction by sending
AWS written notice as provided for in the Agreement. If AWS declines to follow any instruction
requested by Customer regarding audits or inspections, Customer is entitled to terminate this DPA
and the Agreement. If the Standard Contractual Clauses apply, nothing in this Section varies or
modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s
rights under the Standard Contractual Clauses.
Transfers of Personal Data.
12.1
Regions.
Customer may specify the location(s) where Customer Data will be processed
within the AWS Network, including the EU (Dublin) Region, the EU (Frankfurt) Region, the
EU (London) Region and the EU (Paris) Region (each a “Region”). Once Customer has
made its choice, AWS will not transfer Customer Data from Customer’s selected Region(s)
except as necessary to provide the Services initiated by Customer, or as necessary to
comply with the law or binding order of a governmental body. If the Standard Contractual
Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses.
Application of Standard Contractual Clauses.
The Standard Contractual Clauses will
apply to Customer Data that is transferred outside the EEA, either directly or via onward
transfer, to any country not recognised by the European Commission as providing an
adequate level of protection for personal data (as described in the GDPR). The Standard
Contractual Clauses will not apply to Customer Data that is not transferred, either directly
or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard
Contractual Clauses (or obligations the same as those under the Standard Contractual
Clauses) will not apply if AWS has adopted Binding Corporate Rules for Processors or an
12.
12.2
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alternative recognised compliance standard for the lawful transfer of personal data (as
defined in the GDPR) outside the EEA.
13.
14.
Termination of the DPA.
This DPA shall continue in force until the termination of the Agreement
(the “Termination
Date”).
Return or Deletion of Customer Data.
The Services provide Customer with controls that
Customer may use to retrieve or delete Customer Data as described in the Documentation. Up to
the Termination Date, Customer will continue to have the ability to retrieve or delete Customer
Data in accordance with this Section. For 90 days following the Termination Date, Customer may
retrieve or delete any remaining Customer Data from the Services, subject to the terms and
conditions set out in the Agreement, unless prohibited by law or the order of a governmental or
regulatory body or it could subject AWS or its Affiliates to liability. No later than the end of this
90 day period, Customer will close all AWS accounts. AWS will delete Customer Data when
requested by Customer by using the Service controls provided for this purpose by AWS.
Duties to Inform.
Where Customer Data becomes subject to confiscation during bankruptcy or
insolvency proceedings, or similar measures by third parties while being processed by AWS, AWS
will inform Customer without undue delay. AWS will, without undue delay, notify all relevant
parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subjected to
those proceedings is Customer’s property and area of responsibility and that Customer Data is at
Customer’s sole disposition.
Entire Agreement; Conflict.
Except as amended by this DPA, the Agreement will remain in full
force and effect. If there is a conflict between any other agreement between the parties including
the Agreement and this DPA, the terms of this DPA will control, except that the Service Terms will
control over this DPA.
Definitions.
Unless otherwise defined in the Agreement, all capitalised terms used in this DPA
will have the meanings given to them below:
“AWS
Network”
means AWS’s data center facilities, servers, networking equipment, and host
software systems (e.g., virtual firewalls) that are within AWS’s control and are used to provide the
Services.
“AWS
Security Standards”
means the security standards attached to the Agreement, or if none
are attached to the Agreement, attached to this DPA as Annex 1.
“Customer” means you or the entity you represent.
“Customer
Data”
means the “personal data” (as defined in the GDPR) that is uploaded to the
Services under Customer’s AWS accounts.
“EEA” means the European Economic Area.
“GDPR” means 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).
“processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed”
will be interpreted accordingly.
“Security
Incident”
means a breach of AWS’s security leading to the accidental or unlawful
destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.
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15.
16.
17.
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“Standard Contractual Clauses”
means Annex 2, attached to and forming part of this DPA
pursuant to the European Commission Decision of 5 February 2010 on standard contractual
clauses for the transfer of personal data to processors established in third countries under
Directive 95/46/EC.
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Annex 1
AWS Security Standards
Capitalised terms not otherwise defined in this document have the meanings assigned to them in the
Agreement.
1.
Information Security Program.
AWS will maintain an information security program (including the
adoption and enforcement of internal policies and procedures) designed to (a) help Customer
secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify
reasonably foreseeable and internal risks to security and unauthorised access to the AWS Network,
and (c) minimise security risks, including through risk assessment and regular testing. AWS will
designate one or more employees to coordinate and be accountable for the information security
program. The information security program will include the following measures:
1.1
Network Security.
The AWS Network will be electronically accessible to employees,
contractors and any other person as necessary to provide the Services. AWS will maintain
access controls and policies to manage what access is allowed to the AWS Network from each
network connection and user, including the use of firewalls or functionally equivalent
technology and authentication controls. AWS will maintain corrective action and incident
response plans to respond to potential security threats.
Physical Security
1.2.1 Physical Access Controls.
Physical components of the AWS Network are housed in
nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent
unauthorised entrance to the Facilities both at the perimeter and at building access
points. Passage through the physical barriers at the Facilities requires either electronic
access control validation (e.g., card access systems, etc.) or validation by human
security personnel (e.g., contract or in-house security guard service, receptionist,
etc.). Employees and contractors are assigned photo-ID badges that must be worn
while the employees and contractors are at any of the Facilities. Visitors are required
to sign-in with designated personnel, must show appropriate identification, are
assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities,
and are continually escorted by authorised employees or contractors while visiting the
Facilities.
1.2.2 Limited Employee and Contractor Access.
AWS provides access to the Facilities to
those employees and contractors who have a legitimate business need for such access
privileges. When an employee or contractor no longer has a business need for the
access privileges assigned to him/her, the access privileges are promptly revoked, even
if the employee or contractor continues to be an employee of AWS or its Affiliates.
1.2.3 Physical Security Protections.
All access points (other than main entry doors) are
maintained in a secured (locked) state. Access points to the Facilities are monitored by
video surveillance cameras designed to record all individuals accessing the
Facilities. AWS also maintains electronic intrusion detection systems designed to
detect unauthorised access to the Facilities, including monitoring points of vulnerability
(e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors,
etc.) with door contacts, glass breakage devices, interior motion-detection, or other
devices designed to detect individuals attempting to gain access to the Facilities. All
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1.2
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physical access to the Facilities by employees and contractors is logged and routinely
audited.
2.
Continued Evaluation.
AWS will conduct periodic reviews of the security of its AWS Network and
adequacy of its information security program as measured against industry security standards and
its policies and procedures. AWS will continually evaluate the security of its AWS Network and
associated Services to determine whether additional or different security measures are required to
respond to new security risks or findings generated by the periodic reviews.
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Annex 2
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors
established in third countries which do not ensure an adequate level of data protection
The entity identified as “Customer” in the DPA
(the “data
exporter”)
and
Amazon Web Services Inc.
410 Terry Avenue North, Seattle, WA 98109-5210, USA.
(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.
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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;
'the
data exporter'
means the controller who transfers the personal data;
'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;
'the subprocessor'
means any processor engaged by the data importer or by any other
subprocessor of the data importer who agrees to receive from the data importer or from any
other subprocessor of the data importer personal data exclusively intended for processing
activities to be carried out on behalf of the data exporter after the transfer in accordance with his
instructions, the terms of the Clauses and the terms of the written subcontract;
'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;
'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.
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
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(b)
(c)
(d)
(e)
(f)
2.
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the rights and obligations of the data exporter, in which case the data subject can enforce them
against such entity.
3.
The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g),
Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the
data importer have factually disappeared or ceased to exist in law or have become insolvent, unless
any successor entity has assumed the entire legal obligations of the data exporter by contract or by
operation of law as a result of which it takes on the rights and obligations of the data exporter, in
which case the data subject can enforce them against such entity. Such third-party liability of the
subprocessor shall be limited to its own processing operations under the Clauses.
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;
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;
that the data importer will provide sufficient guarantees in respect of the technical and
organisational security measures specified in Appendix 2 to this contract;
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;
that it will ensure compliance with the security measures;
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;
to forward any notification received from the data importer or any subprocessor pursuant to
Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter
decides to continue the transfer or to lift the suspension;
to make available to the data subjects upon request a copy of the Clauses, with the exception of
Appendix 2, and a summary description of the security measures, as well as a copy of any contract
for subprocessing services which has to be made in accordance with the Clauses, unless the
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4.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
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Clauses or the contract contain commercial information, in which case it may remove such
commercial information;
(i)
that, in the event of subprocessing, the processing activity is carried out in accordance with Clause
11 by a subprocessor providing at least the same level of protection for the personal data and the
rights of data subject as the data importer under the Clauses; and
that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
1
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;
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;
that it has implemented the technical and organisational security measures specified in Appendix
2 before processing the personal data transferred;
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,
any accidental or unauthorised access, and
any request received directly from the data subjects without responding to that request,
unless it has been otherwise authorised to do so;
(j)
(b)
(c)
(d)
(ii)
(iii)
(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;
1
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.
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(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;
to make available to the data subject upon request a copy of the Clauses, or any existing contract
for subprocessing, unless the Clauses or contract contain commercial information, in which case it
may remove such commercial information, with the exception of Appendix 2 which shall be
replaced by a summary description of the security measures in those cases where the data subject
is unable to obtain a copy from the data exporter;
that, in the event of subprocessing, it has previously informed the data exporter and obtained its
prior written consent;
that the processing services by the subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data
exporter.
Clause 6
Liability
(g)
(h)
(i)
(j)
1.
The parties agree that any data subject, who has suffered damage as a result of any breach of the
obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive
compensation from the data exporter for the damage suffered.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against
the data exporter, arising out of a breach by the data importer or his subprocessor of any of their
obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually
disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the
data subject may issue a claim against the data importer as if it were the data exporter, unless any
successor entity has assumed the entire legal obligations of the data exporter by contract 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 subprocessor of its obligations in order to avoid its own
liabilities.
If a data subject is not able to bring a claim against the data exporter or the data importer referred
to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations
referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have
factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees
that the data subject may issue a claim against the data subprocessor with regard to its own
processing operations under the Clauses as if it were the data exporter or the data importer,
unless any successor entity has assumed the entire legal obligations of the data exporter or data
importer by contract or by operation of law, in which case the data subject can enforce its rights
against such entity. The liability of the subprocessor shall be limited to its own processing
operations under the Clauses.
2.
3.
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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)
(b)
2.
to refer the dispute to mediation, by an independent person or, where applicable, by the
supervisory authority;
to refer the dispute to the courts in the Member State in which the data exporter is
established.
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.
2.
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.
The parties agree that the supervisory authority has the right to conduct an audit of the data
importer, and of any subprocessor, which has the same scope and is subject to the same conditions
as would apply to an audit of the data exporter under the applicable data protection law.
The data importer shall promptly inform the data exporter about the existence of legislation
applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or
any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to
take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
3.
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding
clauses on business related issues where required as long as they do not contradict the Clause.
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Clause 11
Subprocessing
1.
The data importer shall not subcontract any of its processing operations performed on behalf of
the data exporter under the Clauses without the prior written consent of the data exporter.
Where the data importer subcontracts its obligations under the Clauses, with the consent of the
data exporter, it shall do so only by way of a written agreement with the subprocessor which
imposes the same obligations on the subprocessor as are imposed on the data importer under
the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such
written agreement the data importer shall remain fully liable to the data exporter for the
performance of the subprocessor's obligations under such agreement.
The prior written contract between the data importer and the subprocessor shall also provide for
a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not
able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data
exporter or the data importer because they have factually disappeared or have ceased to exist in
law or have become insolvent and no successor entity has assumed the entire legal obligations of
the data exporter or data importer by contract or by operation of law. Such third-party liability of
the subprocessor shall be limited to its own processing operations under the Clauses.
The provisions relating to data protection aspects for subprocessing of the contract referred to in
paragraph 1 shall be governed by the law of the Member State in which the data exporter is
established.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and
notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year.
The list shall be available to the data exporter's data protection supervisory authority.
Clause 12
Obligation after the termination of personal data processing services
1.
The parties agree that on the termination of the provision of data processing services, the data
importer and the subprocessor shall, at the choice of the data exporter, return all the personal
data transferred and the copies thereof to the data exporter or shall destroy all the personal data
and certify to the data exporter that it has done so, unless legislation imposed upon the data
importer prevents it from returning or destroying all or part of the personal data transferred. In
that case, the data importer warrants that it will guarantee the confidentiality of the personal data
transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or
of the supervisory authority, it will submit its data processing facilities for an audit of the measures
referred to in paragraph 1.
2.
3.
4.
2.
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APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
Data exporter
The data exporter is the entity identified as “Customer” in the DPA
Data importer
The data importer is Amazon Web Services, Inc., a provider of web services.
Data subjects
Data subjects are defined in Section 1.3 of the DPA.
Categories of data
The personal data is defined in Section 1.3 of the DPA.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing operations are defined in Section 1.3 of the DPA.
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APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed 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):
The technical and organisational security measures implemented by the data importer are as described
in the DPA.
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