Version 1, effective as of 13 November 2023

This document supplements the Framework Service Agreements between Graphisoft SE and its contractors.

Terms and Conditions for Data Processing

GRAPHISOFT SE PRIVATE EUROPEAN COMPANY LIMITED BY SHARES (seated at Graphisoft Park 1, Záhony utca 7, H-1031 Budapest, Hungary; registered under registration number Cg. 01- 20-000001 by the Municipal Court, Budapest; hereinafter referred to as Graphisoft or Controller) as data controller and the other contacting party as data processor (“Processor”)  - Controller and Processor hereinafter referred to collectively as the “Parties”- have contracted for services according to the Principal Agreement, which involve the processing of personal data as referred to at section A of this Terms and Conditions for Data Processing (hereinafter referred to as the “TC”). When processing personal data, Controller acts as data controller, Data Processor acts as data processor.

In order to protect the personal data of data subjects, to maintain trust of clients, and to comply effectively with the legal requirements of data protection, the contracting Parties define the requirements for processing of personal data by the Processor as follows.

  1. Subject of this TC

In respect of all personal data processed on behalf of Controller the Processor undertakes to process such personal data solely to the extent strictly necessary for the purposes of the Principal Agreement and as defined under section A of this TC.

The Processor shall not process these personal data for any other purpose, especially for its own purposes. In particular Processor shall not include personal data in any of its own products or services or in products or services offered to third parties.

The Processor shall keep and process personal data entrusted to it separately from other personal data processed on behalf of other controllers.

The Contracting Parties agree that the Processor shall not be entitled for reimbursement of any costs except for that agreed in the Principal Agreement incurred in fulfilling its obligations under this TC.

  1. Definitions

If the terms set out in this TC do not contradict the terms below, they shall be understood as given in the Principal Agreement.

1.1. „Personal data” means any information relating to an identified or identifiable natural person (data subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the  physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

 

1.2. ‘Processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

1.3. “GDPR” means the EU General Data Protection Regulation 2016/679

1.4. “NAIH” means the Hungarian National Authority for Data Protection and Freedom of Information

1.5. “Principal Agreement” means the contract entered between the contracting Parties, in which the Processor rebders services for Controller and related to its services also processes personal data on behalf of Controller.

1.6. “Obligatory security measures” means the technical and organisational measures for which the processor undertakes to perform as defined in section D of this TC.

For terms not defined above, the definitions in the GDPR apply.

  1. Data processing compliance with legislation, responsibility  

Processor undertakes to comply with all applicable data protection laws, in particular the GDPR, for data processing covered by this TC. In the case of data processing by the Processor, the Processor shall be liable for any damage caused by the infringement the applicable data protection laws by the Processor, fines and damages shall be borne by the Processor.

  1. Data processing on instructions from the Controller

The Processor shall process the personal data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by law to which the Processor is subject. In such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information.

  1. Obligatory security measures

5.1. Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing carried out during the implementation of the Principal Agreement, as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the Processor shall implement appropriate technical and organisational measures, in order to guarantee an adequate level of data security to the degree of risk.

The Processor shall take the minimum security measures specified in section D of this TC.

5.2. In assessing the appropriate level of security Processor shall take into account in particular of the risks that are presented by processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.

5.3. Taking into account the abovementioned, the Processor shall be able to ensure in particular  

- the pseudonymisation and encryption of personal data;

- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

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

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

  1. Transfers of personal data outside the European Economic Area (EEA)

6.1. The Processor shall transfer personal data outside the European Economic Area solely on documented instructions or written permission from the Controller.  

6.2. If the Processor transfers personal data to a third country which, according to the European Commission’s decision, does not ensure an adequate level of data protection, the Processor is obliged to inform the Controller of the appropriate safeguard of lawful transfer of personal data.

  1. Confidentiality and secrecy

        

7.1. The Processor shall ensure that personal data are accessed only by persons for whom it is absolutely necessary for the performance of their duties under the Principal Agreement and section A of this TC.

7.2. The Processor shall take appropriate measures to ensure that any natural person acting under the authority of the Processor, who has access to personal data, does not process those data except on instructions from Controller.

7.3. The Processor also undertakes that any person acting under the authority of the Processor, can only have access to the personal data if they have previously made a written commitment to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.4. The Processor shall provide an adequate level of data protection training for persons involved in data processing operations and update their privacy awareness.

  1. Engagement of subprocessors

        

8.1. The Processor shall not engage another processor (subprocessor) without prior specific or general written authorisation of the Controller. The Processor shall provide the Controller with appropriate information on the details of the data processing to be used.

 

8.2. Where the Processor engages a subprocessor for carrying out specific processing activities on behalf of the Controller, the same data protection obligations shall be imposed on the subprocessor by way of a written contract as set out in the present TC. The subprocessor shall provide sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the present TC. Where the subprocessor fails to fulfil its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the subprocessor’s obligations. 

8.3. The Processor shall contract with the subprocessor in a way that in the event of a personal data breach caused by the actions of subprocessor, if requested by the Controller, the Controller may, under the subprocessor’s contract with the Processor, take all appropriate measures for the protection of personal data.

  1. Cooperation with the Controller

9.1. The Processor shall process the personal data only on instructions of the Controller. The Processor shall immediately inform the Controller if, in its opinion, an instruction infringes any law. 

9.2. Contracting Parties shall notify each other in writing within (5) five days of any changes related to any information in section A of this TC.

  1. Exercising the rights of data subjects

10.1. The Processor assists the Controller with appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Controller’s obligation to respond to requests by data subjects to exercise their rights, in particular the right to information, access, rectification, erasure, be forgotten, restriction, data portability, objection, and not to be subject to automated decision-making.

10.2. In order to exercise the abovementioned rights under the GDPR, the Processor shall in particular take the following technical measures:

  • the ability to flag personal data in case it is necessary to retrieve, rectify, delete or transmit data concerning any natural person;

  • on request the ability to delete or block any personal data from being accessed.

10.3. The Processor complies with the obligation laid down in this section via the officer indicated in section C to this TC.

10.4. On request from Controller, the Processor shall respond in writing within 5 (five) days.

10.5. Processor shall promptly notify Controller if it receives a request directly from a data subject. The Processor is not authorised to give information about the data processing directly to the data subjects.

  1. Dealing with personal data breaches

11.1. A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned.

11.2. The Processor undertakes to provide an adequate level of data protection training for persons involved in data processing operations and to regularly keep their knowledge on data protection requirements up to date.

 

11.3. The Processor shall take appropriate technical and organisational measures to avoid personal data breaches, to be able to detect them without undue delay and to determine their severity, and to be able to notify the Controller about the personal data breaches immediately, but not later than 24 hours after having become aware of them.

11.4. The Processor shall notify the Controller about the data breach via e-mail at the Data Protection Officer indicated in section C.

The Processor’s notification shall at least:

a) describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

b) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;

c) describe the likely consequences of the personal data breach;

d) describe the measures taken or proposed to be taken by the Processor to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects;        

e) the measures by which the data subjects concerned themselves can mitigate the risks arising from the personal data breach.

10.5. Without written authorisation from the Controller or any specific legislative provision the Processor shall not disclose any information to anyone – in particular to the data subjects, the press, or the NAIH.

10.6. The Processor undertakes, that in case of a personal data breach, if after the notification the Controller finds it necessary, without undue delay consults with the representatives of the Controller in order to mitigate the possible adverse effects, or if it is possible, to put an end to the personal data breach.  

  1. Data Protection Impact Assessment

Where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons, a data protection impact assessment shall be carried out. The Controller is responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk. Before starting to process data, the Processor shall make all necessary information available to the Controller to perform the data protection impact assessment at an appropriate level.

  1. Audit

13.1. In order to demonstrate compliance with this TC the Processor shall allow for and contribute to audits, including inspections conducted by the Controller. In the course of the audit, the Processor shall ensure access to documents proving the lawfulness of its data processing activities, and the Processor shall allow Controller to make copies of them, and make the written or personal contact possible with the persons involved in the data processing. The Controller in due time before starting the audit shall notify the Processor about the audit.

13.2. Instead of the audit conducted by the Controller, at the choice of the Controller, the Processor’s processing activity can also be verified by an external auditor mandated by the Controller. In this case the Processor shall cooperate similarly with the external auditor.

 

13.3. Neither the audit performed by Controller, nor the external audit performed by a third party shall interfere unnecessarily with the operation of the Processor.

13.4. The expenses of the audit are borne by the Controller, except if audits are needed because the Controller has a well-founded suspicion that the Processor or its sub-processor does not process the data in accordance with this TC and the audit confirms the Controller’s suspicion.

 

  1. Erasure and return of the data

After the completion of the processing on behalf of the Controller, the Processor should, at the choice of the Controller, return or delete all personal data and their copies and attest the deletion of the personal data, unless there is a requirement to store the personal data under a law to which the Processor is subject. In case of such legal requirements the Processor shall notify Controller in writing of its legal obligation and of the envisaged period of the data processing.

  1. Contact with third parties

The Processor commits itself not to disclose information about data processing under this TC to anyone without specific and written authorisation from Controller or specific legislative obligation.

  1. Breach of contract

Severe breaches of the material contractual obligations set out in this TC committed by the Processor or by a sub-processor shall be deemed to be a serious breach of the Principal Agreement, and Controller has the right to terminate the Principal Agreement with reference to the breach of contract.

  1. International data transfers

If an international data transfer takes place in scope of the data processing , the Appendix I to this TC shall be applicable.

  1. Modification of this TC

Controller is entitled to modify any part (including the sections and Appendices) to this TC any time without notice to the Processor. Modifications shall be published on the Controller’s website. It is the Processor’s obligation to regularly check the Controller’s website for modifications and updates.

* * *

*

Sections A. to D. to the TC to be filled in and signed by the contracting Parties:

Section A. Records of processing activities performed by the Processor:

The subject matter of the data processing: …………….

The period of the data processing: ……………

The nature and purpose of the data processing: …………….

Type of the personal data: …………….

Categories of the data subjects: …………..

Section B. List of the approved subprocessors:

The Processor can engage the following subprocessors:

1.Name:………………………., seat:…………………………… registration number: …………………………….., representative:…………………………………….

2.Name:………………………., seat:…………………………… registration number: …………………………….., representative:…………………………………….

Section C. Data Protection Officer:

Controller:

-name:……………………………………………., email:……………………………., telephone:………………………….

Processor:

- name:……………………………………………., email:……………………………., telephone:………………………….

D. Obligatory security measures - Minimum technical and organisational security standards

Electronic Data Security

  • The data stored electronically (e.g. on company servers) will be backed-up regularly by the Processor.
  • Processor will only utilize encrypted and authenticated remote connectivity to environments with personal data.
  • Any backup or export of personal data will be encrypted prior to transport or transfer.
  • Processor will have defined and periodically validated business continuity and disaster recovery plans according to industry standard best practices.
  • Processor will use network security measures such as firewalls, network segmentation to protect personal data.
  • Processor will perform the detection of unauthorized or malicious network activity via security logging and monitoring.
  • Processor shall implement the control and restriction of access rights.
  • If the Processor has a server room, it will ensure that it meets high technical and security standards.
  • The Processor implements strong password protection, including password complexity, password length, reuse of previously used passwords, and password replacement.

Physical security in general

  • Badge access to buildings
  • Badge access to offices
  • Badge access to storage facilities (files)
  • Controlled access to premises

General Security Measures

  • Regular internal audits

-----------------------------------                        --------------------------------------------

                Controller                                        Processor

APPENDIX I

EU Standard Contractual Clauses (for international transfers) as released by the European Commission on June 4, 2021

between Controller and Processor (based on Module 2)

SECTION I

Clause 1 

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) (1) for the transfer of personal data to a third country.

(b)The Parties:

  1. 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 1.A (hereinafter each ‘data exporter’), and

  1. 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 1.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 1.B.

(d)The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2 

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.

Clause 3 

Third-party beneficiaries

(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:

  1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
  2. Clause 8.1(b), 8.9(a), (c), (d) and (e);  
  3. Clause 9 – Clause 9(a), (c), (d) and (e);  
  4. Clause 12 – Clause 12(a), (d) and (f);
  5. Clause 13;
  6. Clause 15.1(c), (d) and (e);
  7. 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.

Clause 4 

Interpretation

(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.

Clause 5 

Hierarchy

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.

Clause 6 

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 1.B.

Clause 7 – Optional 

Docking clause

(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 1.A.

(b)Once it has completed the Appendix and signed Annex 1.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 1.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

Clause 8 

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.

Transfer controller to processor

8.1   Instructions

(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 1.B, unless on further instructions from the data exporter.

8.3   Transparency

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 2 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.

8.4   Accuracy

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 1.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 2. 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 1.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 (4) (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:

  1. 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;
  2. 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.

Clause 9 

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, which is in section B. of the Contract terms for data processing. 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 [5 working 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.

(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. (8) 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.

Clause 10 

Data subject rights

Transfer controller to processor

(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 2 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.

Clause 11 

Redress

(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.

Clause 12 

Liability

(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 subprocessor 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.

Clause 13 

Supervision

(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex 1.C, shall act as competent supervisory authority.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14 

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:

  1. 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;
  2. 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;
  3. 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.

Clause 15 

Obligations of the data importer in case of access by public authorities

15.1   Notification

(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:

  1. 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
  2. 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

Clause 16 

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).

  1. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
  1. 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;
  2. the data importer is in substantial or persistent breach of these Clauses; or
  3. 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 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.

  1. 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.

Clause 17 

Governing law

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 Hungary.

Clause 18 

Choice of forum and jurisdiction

(a)Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

  1. The Parties agree that those shall be the courts of Hungary.
  2. 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.
  3. The Parties agree to submit themselves to the jurisdiction of such courts.

 

ANNEX 1 OF APPENDIX I

A.   LIST OF PARTIES

Data exporter(s):

Name:  

Address:  

Contact person’s name, position and contact details: [Please fill in the relevant information]

Activities relevant to the data transferred under these Clauses:  collection and use of personal data

Signature and date:

Role (controller): Uses Data importer’s services as defined in the Principal Agreement. 

         

Data importer(s):   

 

Name:  ………………..

Address:  [Please fill in the relevant information]

Contact person’s name, position and contact details: [Please fill in the relevant information]

Activities relevant to the data transferred under these Clauses: ………..

Signature and date:

Role (processor): ……………….

B.   DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

 

……………………

Categories of personal data transferred 

…………………

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. 

………………

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis). 

…………………

Nature of the processing

……………….

Purpose(s) of the data transfer and further processing 

………………………….

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period 

……………………

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing 

[Fill out after completing section B. of the TC]

C.   COMPETENT SUPERVISORY AUTHORITY

In the jurisdiction of the Data Exporter according to Clause 13 (a).

ANNEX 2

 

Technical and Organizational Measures including Technical and Organizational

Measures to ensure the Security of the Data

         

The Contracting parties have agreed upon the following security measures:

Electronic Data Security

  • The data stored electronically (e.g. on company servers) will be backed-up regularly by the Processor.
  • Processor will only utilize encrypted and authenticated remote connectivity to environments with personal data.
  • Any backup or export of personal data will be encrypted prior to transport or transfer.
  • Processor will have defined and periodically validated business continuity and disaster recovery plans according to industry standard best practices.
  • Processor will use network security measures such as firewalls, network segmentation to protect personal data.
  • Processor will perform the detection of unauthorized or malicious network activity via security logging and monitoring.
  • Processor shall implement the control and restriction of access rights.
  • If the processor has a server room, it will ensure that it meets high technical and security standards.
  • The data processor implements strong password protection, including password complexity, password length, reuse of previously used passwords, and password replacement.

Physical security in general

  • Badge access to buildings
  • Badge access to offices
  • Badge access to storage facilities (files)
  • Controlled access to premises

General Security Measures

  • Regular internal audits
  • IT Penetration tests

ANNEX 3

LIST OF SUB-PROCESSORS

The controller has authorised the use of the following sub-processors:

1. Name:

Address:

Contact person’s name, position and contact details: …

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised):