Section 2 EU Standard Model Clauses for Controller to Controller [Module 1]
Clause 1: Purpose and scope
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 data to a
the Customer who has entered into the DPP for the provision of Fastmail
Services (‘Data Exporter’), and
Fastmail (hereinafter each ‘Data Importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
These Clauses apply with respect to the transfer of Personal Data as
specified in Annex 1.
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
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
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
Data Subjects may invoke and enforce these Clauses, as third-party
beneficiaries, against the Data Exporter and/or Data Importer, with the
Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
Clause 8 – Clause 8.5 (e) and Clause 8.9(b);
Clause 12(a) and (d);
Clause 15.1(c), (d) and (e);
Clause 18 –Clause 18(a) and (b);
Paragraph (a) is without prejudice to rights of Data Subjects under
Regulation (EU) 2016/679.
Clause 4: Interpretation
Where these Clauses use terms that are defined in Regulation (EU) 2016/679,
those terms shall have the same meaning as in that Regulation.
These Clauses shall be read and interpreted in the light of the provisions
of Regulation (EU) 2016/679.
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.
Clause 7: Docking clause
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 and signing the Appendix and signing
Once it has completed and signed the Appendix and signed Annex 1, 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.
The acceding entity shall have no rights or obligations arising under these
Clauses from the period prior to becoming a Party.
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.
8.1 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. It may only process the
Personal Data for another purpose:
where it has obtained the Data Subject’s prior consent;
where necessary for the establishment, exercise or defence of legal claims
in the context of specific administrative, regulatory or judicial
where necessary in order to protect the vital interests of the Data Subject
or of another natural person.
In order to enable Data Subjects to effectively exercise their rights
pursuant to Clause 10, the Data Importer shall inform them, either directly
or through the Data Exporter:
of its identity and contact details;
of the categories of Personal Data processed;
of the right to obtain a copy of these Clauses;
where it intends to onward transfer the Personal Data to any third
party/ies, of the recipient or categories of recipients (as appropriate
with a view to providing meaningful information), the purpose of such
onward transfer and the ground therefore pursuant to Clause 8.7.
Paragraph (a) shall not apply where the Data Subject already has the
information, including when such information has already been provided by
the Data Exporter, or providing the information proves impossible or would
involve a disproportionate effort for the Data Importer. In the latter case,
the Data Importer shall, to the extent possible, make the information
On request, the Parties shall make a copy of these Clauses, including the
Appendix as completed by them, available to the Data Subject free of charge.
To the extent necessary to protect business secrets or other confidential
information, including Personal Data, the Parties may redact part of the
text of the Appendix prior to sharing a copy, but shall provide a meaningful
summary where the Data Subject would otherwise not be able to understand 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.
Paragraphs (a) to (c) are without prejudice to the obligations of the data
exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
Each Party shall ensure that the Personal Data is accurate and, where
necessary, kept up to date. The Data Importer shall take every reasonable
step to ensure that Personal Data that is inaccurate, having regard to the
purpose(s) of processing, is erased or rectified without delay.
If one of the Parties becomes aware that the Personal Data it has
transferred or received is inaccurate, or has become outdated, it shall
inform the other Party without undue delay.
The Data Importer shall ensure that the Personal Data is adequate, relevant
and limited to what is necessary in relation to the purpose(s) of
8.4 Storage limitation
The Data Importer shall retain the Personal Data for no longer than necessary
for the purpose(s) for which it is processed. It shall put in place appropriate
technical or organisational measures to ensure compliance with this obligation,
including erasure or anonymisation of the data and all back-ups at the end of
the retention period.
8.5 Security of processing
The Data Importer and, during transmission, also the Data Exporter shall
implement appropriate technical and organisational measures to ensure the
security of the Personal Data, including protection against a breach of
security leading to accidental or unlawful destruction, loss, alteration,
unauthorised disclosure or access (hereinafter ‘Personal Data breach’). In
assessing the appropriate level of security, they 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 Subject. 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
The Parties have agreed on the technical and organisational measures set out
in Annex 2. The Data Importer shall carry out regular checks to ensure that
these measures continue to provide an appropriate level of security.
The Data Importer shall ensure that persons authorised to process the
Personal Data have committed themselves to confidentiality or are under an
appropriate statutory obligation of confidentiality.
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 Personal Data breach, including measures
to mitigate its possible adverse effects.
In case of a Personal Data breach that is likely to result in a risk to the
rights and freedoms of natural persons, the Data Importer shall without
undue delay notify both the Data Exporter and the competent supervisory
authority pursuant to Clause 13. Such notification shall contain i) a
description of the nature of the breach (including, where possible,
categories and approximate number of Data Subjects and Personal Data records
concerned), ii) its likely consequences, iii) the measures taken or proposed
to address the breach, and iv) the details of a contact point from whom more
information can be obtained. To the extent it is not possible for the data
importer to provide all the information at the same time, it may do so in
phases without undue further delay.
In case of a Personal Data breach that is likely to result in a high risk to
the rights and freedoms of natural persons, the Data Importer shall also
notify without undue delay the Data Subjects concerned of the Personal Data
breach and its nature, if necessary in cooperation with the Data Exporter,
together with the information referred to in paragraph (e), points ii) to
iv), unless the Data Importer has implemented measures to significantly
reduce the risk to the rights or freedoms of natural persons, or
notification would involve disproportionate efforts. In the latter case, the
Data Importer shall instead issue a public communication or take a similar
measure to inform the public of the Personal Data breach.
The Data Importer shall document all relevant facts relating to the personal
data breach, including its effects and any remedial action taken, and keep a
8.6 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 or offences
(hereinafter ‘sensitive data’), the Data Importer shall apply specific
restrictions and/or additional safeguards adapted to the specific nature of the
data and the risks involved. This may include restricting the personnel
permitted to access the Personal Data, additional security measures (such as
pseudonymisation) and/or additional restrictions with respect to further
8.7 Onward transfers
The Data Importer shall not disclose the Personal Data 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’) unless the third party is
or agrees to be bound by these Clauses, under the appropriate Module. Otherwise,
an onward transfer by the Data Importer may only take place if:
it is to a country benefitting from an adequacy decision pursuant to Article
45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to
Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing
the third party enters into a binding instrument with the Data Importer
ensuring the same level of data protection as under these Clauses, and the
Data Importer provides a copy of these safeguards to the Data Exporter;
it is necessary for the establishment, exercise or defence of legal claims
in the context of specific administrative, regulatory or judicial
it is necessary in order to protect the vital interests of the Data Subject
or of another natural person; or
where none of the other conditions apply, the Data Importer has obtained the
explicit consent of the Data Subject for an onward transfer in a specific
situation, after having informed him/her of its purpose(s), the identity of
the recipient and the possible risks of such transfer to him/her due to the
lack of appropriate data protection safeguards. In this case, the data
importer shall inform the Data Exporter and, at the request of the latter,
shall transmit to it a copy of the information provided to the Data Subject.
Any onward transfer is subject to compliance by the Data Importer with all the
other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the Data Importer
The Data Importer shall ensure that any person acting under its authority,
including a Processor, processes the data only on its instructions.
8.9 Documentation and compliance
Each Party shall be able to demonstrate compliance with its obligations
under these Clauses. In particular, the Data Importer shall keep appropriate
documentation of the processing activities carried out under its
The Data Importer shall make such documentation available to the competent
supervisory authority on request.
Clause 9: [not applicable]
Clause 10: Data Subject rights
The Data Importer, where relevant with the assistance of the Data Exporter,
shall deal with any enquiries and requests it receives from a Data Subject
relating to the processing of his/her Personal Data and the exercise of
his/her rights under these Clauses without undue delay and at the latest
within one month of the receipt of the enquiry or request. The Data Importer
shall take appropriate measures to facilitate such enquiries, requests and
the exercise of Data Subject rights. Any information provided to the data
subject shall be in an intelligible and easily accessible form, using clear
and plain language.
In particular, upon request by the Data Subject the Data Importer shall,
free of charge:
provide confirmation to the Data Subject as to whether Personal Data
concerning him/her is being processed and, where this is the case, a
copy of the data relating to him/her and the information in Annex 1;
if Personal Data has been or will be onward transferred, provide
information on recipients or categories of recipients (as appropriate
with a view to providing meaningful information) to which the personal
data has been or will be onward transferred, the purpose of such onward
transfers and their ground pursuant to Clause 8.7; and provide
information on the right to lodge a complaint with a supervisory
authority in accordance with Clause 12(c)(i);
rectify inaccurate or incomplete data concerning the Data Subject;
erase Personal Data concerning the Data Subject if such data is being or
has been processed in violation of any of these Clauses ensuring
third-party beneficiary rights, or if the Data Subject withdraws the
consent on which the processing is based.
Where the Data Importer processes the Personal Data for direct marketing
purposes, it shall cease processing for such purposes if the Data Subject
objects to it.
The Data Importer shall not make a decision based solely on the automated
processing of the Personal Data transferred (hereinafter ‘automated
decision’), which would produce legal effects concerning the Data Subject or
similarly significantly affect him/her, unless with the explicit consent of
the Data Subject or if authorised to do so under the laws of the country of
destination, provided that such laws lays down suitable measures to
safeguard the Data Subject’s rights and legitimate interests. In this case,
the Data Importer shall, where necessary in cooperation with the data
inform the Data Subject about the envisaged automated decision, the
envisaged consequences and the logic involved; and
implement suitable safeguards, at least by enabling the Data Subject to
contest the decision, express his/her point of view and obtain review by
a human being.
Where requests from a Data Subject are excessive, in particular because of
their repetitive character, the Data Importer may either charge a reasonable
fee taking into account the administrative costs of granting the request or
refuse to act on the request.
The Data Importer may refuse a Data Subject’s request if such refusal is
allowed under the laws of the country of destination and is necessary and
proportionate in a democratic society to protect one of the objectives
listed in Article 23(1) of Regulation (EU) 2016/679.
If the Data Importer intends to refuse a Data Subject’s request, it shall
inform the Data Subject of the reasons for the refusal and the possibility
of lodging a complaint with the competent supervisory authority and/or
seeking judicial redress.
Clause 11: Redress
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.
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.
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
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;
refer the dispute to the competent courts within the meaning of Clause 18.
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.
The Data Importer shall abide by a decision that is binding under the
applicable EU or Member State law.
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
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.
Each Party shall be liable to the Data Subject, and the Data Subject shall
be entitled to receive compensation, for any material or non-material
damages that the Party 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 under Regulation (EU) 2016/679.
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.
The Parties agree that if one Party is held liable under paragraph (c), 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.
The Data Importer may not invoke the conduct of a Processor or Subprocessor
to avoid its own liability.
Clause 13: Supervision
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 1, shall act as competent
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.
Clause 14: Local laws and practices affecting compliance with the Clauses
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.
The Parties declare that in providing the warranty in paragraph (a), they
have taken due account in particular of the following elements:
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;
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; and
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.
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.
The Parties agree to document the assessment under paragraph (b) and make
it available to the competent supervisory authority on request.
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).
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
Clause 15: Obligations of the Data Importer in case of access by public authorities
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)
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
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.
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.
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.).
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.
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
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).
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.
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.
Clause 16: Non-compliance with the Clauses and termination
The Data Importer shall promptly inform the Data Exporter if it is unable to
comply with these Clauses, for whatever reason.
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).
The Data Exporter shall be entitled to terminate the contract, insofar as it
concerns the processing of Personal Data under these Clauses, where:
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;
the Data Importer is in substantial or persistent breach of these
the Data Importer fails to comply with a binding decision of a competent
court or supervisory authority regarding its obligations under these
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.
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.
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 one of the EU Member States,
provided such law allows for third- party beneficiary rights. The Parties agree
that this shall be the law of The Republic of Ireland.
Clause 18: Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of an
EU Member State.
The Parties agree that those shall be the courts of The Republic of Ireland.
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.
The Parties agree to submit themselves to the jurisdiction of such courts.