Standard Contractual Clauses
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”) have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 - Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 - Clause 9(a), (c), (d) and (e);
(iv) Clause 12 - Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 - Clause 18(a) and (b);
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least fifteen (15) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object. The data importer provides such written notice by updating its webpage at: https://www.acaglobal.com/eu-gdpr-sub-processors. Data exporters are encouraged to supply a general email address on the webpage for notifications of updates.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
(a) The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of England and Wales.
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State or England and Wales.
(b) The Parties agree that those shall be the courts of England and Wales
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
Transfer controller to processor
Address: As provided in a written agreement for Services and/or products
Contact person’s name, position and contact details: As provided by Client
Activities relevant to the data transferred under these Clauses: Data processing activities carried out by ACA and/or Data Importers pursuant to the terms of an Order Form, Engagement Letter, or other written legal agreement between Client and ACA.
Signature and date: These Standard Contractual Clauses and the UK Addendum shall be incorporated by reference into an agreement signed by ACA and Client.
Name: Adviser Compliance Associates, LLC d/b/a ACA Group (“ACA”)
Address: 909 Rose Avenue, Suite 950, N., Bethesda, Maryland 20852
Contact person’s name, position and contact details: ACA Legal Department, email@example.com, (301) 495-7850
Activities relevant to the data transferred under these Clauses: Data processing activities carried out by ACA and/or Data Importers pursuant to the terms of an Order Form, Engagement Letter, or other written legal agreement between Client and ACA.
Signature and date: These Standard Contractual Clauses and the UK Addendum shall be incorporated by reference into an agreement signed by ACA and Client.
B. DESCRIPTION OF TRANSFER
Transfer controller to processor
Categories of data subjects whose personal data is transferred: Employees, contractors, temporary members of staff, customers, and clients of Client.
Categories of personal data transferred: Names, addresses, email addresses, account numbers, correspondence, ID card numbers, location data, phone numbers.
Sensitive data transferred (if applicable) and applied restrictions or safeguards: ACA limits the recipients of personal data to only those who have a business purpose and need to know.
The frequency of the transfer: Ongoing or continuous basis.
Nature of the processing: Recording and processing activities performed in furtherance of Services and/or products offered by ACA pursuant to a written agreement, which could include personal account dealing; outside business activities; gift, entertainment, and political contributions; and other activities and processes that are necessary to offer Services.
Purpose(s) of the data transfer and further processing: To provide Services to Client in accordance with a written agreement, which may include assistance in management, record-keeping, and reporting functions required by applicable laws, statutes, and regulations.
The period for which the personal data will be retained: The duration of any Services offered pursuant to an Order Form, Engagement Letter, or other written legal agreement between ACA and Client, and a period of thirty (30) days following expiration or termination of the legal agreement, but only as to Personal Data used in that agreement. For instance, Client and ACA may have multiple open engagements, whereby the termination or expiration of one only requires the deletion/destruction of a subset of Client’s data.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
• Subject Matter – The Personal Data transferred to ACA by Client
• Nature of Processing – The provision of the Services as described in the Agreement and/or applicable Order Form(s)/Engagement Letter(s).
• Duration – The term of the Agreement and any applicable Order Form(s)/Engagement Letter(s), plus any period after termination or expiration of the Agreement and all other legal documents (Order Form(s)/Engagement Letter(s)) during which ACA will process personal data in accordance with the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Transfer controller to processor
Competent supervisory authority/ies in accordance with Clause 13:
England and Wales
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Transfer controller to processor
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons:
Human Resources Security
• Pre-Employment: Prior to onboarding, all Employees and independent contractors must undergo a pre-employment background check based on ACA’s Background Check Policy.
• During Employment: At any time, ACA’s Chief Human Resources Officer, or their designee, may have a background check provider conduct a background and criminal screening check on current Employees or independent contractors in accordance with ACA’s Background Check Policy.
• Terminations/Role Changes: All access is deprovisioned on the date of termination and ACA requires that all assets are returned. In the event that there are material changes to the role of a staff member, access to data must be reviewed to ensure that access is appropriately defined for the new role.
• Information Security Awareness: ACA must, at least upon hire and annually, conduct information security awareness training. Employees may also receive information security training on an ad hoc basis.
Information must be classified as (1) Sensitive Information; (2) Confidential Information; or (3) public information, in accordance with the Information Classification Standard to ensure appropriate controls are implemented in accordance with the requirements of ACA’s Written Information Security Program (“WISP”).
• System Management: All systems used by ACA must be identified and inventoried, including systems where data is stored, transmitted, or processed.
• Software Management: All software used by ACA must be identified and inventoried, including Software where Data is stored, transmitted, or processed.
• Data Management: All data sets used by ACA must be identified and inventoried, including data held by third parties on behalf of ACA.
• Vendor Management: ACA conducts diligence upon its Vendors upon retention and on an annual basis for Vendors that are also Subprocessors that process, and/or store data during their provision of Services to ACA.
• Asset Destruction: ACA will destroy data in accordance with NIST and DoD guidelines.
Physical and Environmental Security
• Secure Premises: Most offices utilize key cards and have systems that automatically log access. For offices that utilize keys, ACA has an inventory of which employees hold keys. For offices that have front desk security, visitors are required to show ID. All visitors are required to be escorted throughout offices.
• Clean Desks: ACA requires that employees must not leave workstations/laptops open and unattended, and requires that access key cards/keys are not visible, file cabinets containing data are locked, etc.
• ACA-Provisioned and Approved Devices: ACA requires that all personnel must complete work on ACA-provisioned devices. Additionally, employees may utilize their personal iPhone and Android devices to access Microsoft applications such as Teams and/or Outlook in an ACA-managed environment.
• Transfer of Digital Data to Third Parties: Certain third parties may access, process, and/or store client data during their provision of services to ACA. A list of these third parties and their roles can be found here: https://www.acaglobal.com/eu-gdpr-sub-processors.
• Transfer of Physical Data: ACA primarily transfers data electronically. In the event that physical data needs to be transferred, the data must be sent via recognized national overnight carrier or sent via regular postal mail.
• Handling of Data when Offsite: ACA requires staff to use caution while working remotely. ACA requires employees to use privacy screens when working in public and lock screens while not active. ACA requires VPN and MFA for remote work.
• Lost or Stolen Devices: If a device is stolen or loss, employees are required to promptly notify the IT team.
Data Protection and Data Loss Prevention
• Access Control Provisioning and Reviews: Access is provisioned on a need-to-know basis and is reviewed annually for regular users. All access must be approved utilizing segregation of duties and documented.
• Privileged Access: Access is provisioned on a need-to-know basis and is reviewed semi-annually for privileged users. All access must be approved utilizing segregation of duties and documented.
• Passwords: ACA requires its corporate passwords to: (1) be a minimum length of 15 characters; (2) contain at least 3 of the following: upper case, lower case, special characters, and/or numbers; (3) expire after 90 days; and (4) not be the same as the previous 24 passwords. Accounts log out after 15 minutes of inactivity and lock out after 5 unsuccessful login attempts.
• Data Loss Prevention: ACA prohibits and disables removable media. Additionally, ACA blocks auto-forwarding of emails to external recipients and all laptops are whole disk encrypted. • Access Request Authentication: For any access requests for staff locked out of their ACA account, ACA must validate the staff’s identity prior to granting access. Additionally, all requests for access originating from outside ACA must be verified before the request is fulfilled.
• Destruction and Disposal: Upon Client written request, ACA will destroy data in accordance with NIST and DoD guidelines. Digital data must be disposed of by one of the methods detailed in the NIST SP 800-88 Revision 1 Summary of Sanitization Methods: clear, purge, or destroy. ACA also has remote wipe capabilities for devices.
• Removable Media: ACA prohibits and blocks removable media.
• Information Handling: ACA can encrypt data at rest (via AES256) and in transit (via TLS1.2/1.3).
• Cryptographic Keys: Encryption keys are classified as sensitive information, and access to those keys must be restricted on a “need-to-know” basis.
All changes are subject to ACA’s change management standard. All changes must be approved utilizing segregation of duties. Changes are also subject to documentation, testing, rollback procedures, etc.
• Endpoint Defense: ACA performs logging and monitoring in near real time and utilizes IDS/IPS, login banners, firewalls, etc.
• Data Backup and Resiliency: Data is backed up at least daily and ACA performs backup recovery tests quarterly. ACA performs complete data center failover testing annually.
• Logging and Monitoring: ACA performs logging and monitoring in near real time, utilizing a SIEM to store logs.
• Unauthorized Software: All software installed on ACA devices must receive approval from ACA’s IT team.
• Risk Assessments and Network Testing: ACA performs annual IT and privacy risk assessments.
• Patching: All patches must follow ACA’s change management process. Patches must be deployed as required.
• Firewalls: ACA requires that patches of firewall devices be evaluated for criticality & applicability and be applied as required. ACA reviews firewall rules at least quarterly.
• Wireless Networks: ACA only utilizes a wireless network for guest internet access and it is completely segregated from the corporate network.
• Externally Facing Servers: Any externally facing servers that accept connections from outside the ACA network must be deployed in an intermediate network or demilitarized zone (DMZ). Additionally, ACA utilizes firewalls as a secure gateway.
• Remote Access: ACA requires that MFA and VPN are utilized for remote work.
• Cloud and Hosted Systems: ACA requires that the use of cloud/hosted systems, must be approved in accordance with ACA’s Vendor Management Policy.
System Acquisition, Development, and Maintenance
• Information Systems Security: Prior to the acquisition, deployment or usage of new systems, security controls must be specified and analyzed.
• Application Security: ACA requires that applications must be developed and deployed following a formal Software Development Life Cycle (“SDLC”) process and secure coding practices such as Open Web Application Security Project (“OWASP”).
• Alert Response: In the event of a security incident, ACA will notify its clients as required by law or contract. ACA requires employees to report to ACA’s internal IT team.
• Responsibility for Losses: ACA must evaluate and address its responsibility for losses associated with attacks or intrusions impacting clients and take action as deemed appropriate, and as required by contract or law.
For Transfers to Sub-Processors
ACA shall provide all reasonable and timely assistance (including by appropriate technical and organizational measures listed above) to Client to enable Client to respond to: (i) any request from a Data Subject to exercise any of its rights under applicable data protection law (including rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, inquiry, or complaint received from a Data Subject, regulator, or other third party in connection with the processing of Client Personal Data or Information. In the event that any such request, correspondence, inquiry, or complaint is made directly to ACA, ACA shall promptly inform Client, providing details of the same.
UK Addendum to the EU Commission Standard Contractual Clauses
1. Date of Addendum –This Addendum is dated effective as of the same effective date as a written agreement between ACA and Client for the provision of ACA’s Services or products to Client.
2. Background – The Information Commissioner considers this Addendum to provide appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors.
3. Definitions – Where this Addendum uses terms that are defined in the Annex those terms shall have the same meaning as in the Annex. In addition, the following terms have the following meanings:
a. This Addendum – This Addendum to the Clauses.
b. The Annex – The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
c. UK Data Protection Laws – All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
d. UK GDPR – The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (withdrawal) Act 2018.
e. UK – The United Kingdom of Great Britain and Northern Ireland.
4. Interpretation – This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that it fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR.
5. No Conflict – This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
6. Legislative Changes – Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted, and/or replaced after this Addendum has been entered into.
7. Hierarchy/Precedence – In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to Data Subjects shall prevail.
8. Incorporation of Clauses – This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:
a. For transfers made by the Data Exporter to the Data Importer, to the extent that UK Data Protection Laws apply to the Data Exporter’s processing when making that transfer; and
b. To provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
9. Automatic Amendments – The amendments required by Section 8 (Incorporation of Clauses), include, without limitation:
a. References to the “Clauses” means this Addendum as it incorporates the Clauses.
b. Clause 6 (Description of the transfer(s) is removed and replaced with:
“The details of the transfer(s) and in particular the categories of Personal Data that are transferred and the purpose(s) for which they are transferred, are those specified in Annex I.B where UK Data Protection Laws apply to the Data Exporter’s processing when making that transfer.”
c. References to “Regulation (EU) 2016/679 or “that Regulation” are removed and replaced by “UK Data Protection Laws” and references to specific Articles of “Regulation (EU) 2016/679” are removed and replaced with the equivalent Article or Section of UK Data Protection Laws.
d. References to Regulation (EU) 2018/1725 are removed.
e. References to “Union”, “EU”, and/or “EU Member State”, are all removed and replaced with the “UK”.
f. Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner.
g. Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
h. Clause 18 is removed and replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A Data Subject may also bring legal proceedings against the Data Exporter and/or Data Importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
i. The footnotes to the Clauses, if any, do not form part of the Addendum.
10. Governing Law Optional Amendments – The Parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.
11. Party Amendments – The Parties may amend this Addendum provided it maintains the appropriate safeguards required by Art 46 UK DGPR for the relevant transfer by incorporating the Clauses and making changes to them in accordance with Section 7 (Hierarchy/Precedence) above.
12. Executing this Addendum – The Parties may enter into the Addendum in any way that makes them legally binding on the Parties and allows Data Subjects to enforce their rights as set out in the Clauses.