Controller and Processor

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 organizational security measures’ means those measures aimed at protecting personal data
against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 organizational
security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are
appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration,
unauthorized 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 organizational security measures specified in Appendix 2 before
processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless
otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law
enforcement investigation;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has
been otherwise authorized 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 Minnesota, United States.

 

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 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 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.

Clause 13
Indemnification Clause

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
defense and settlement of the claim (1).