Section 3 EU Standard Model Clauses for Controller to Processor [Module 2]
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 8.1(b), 8.9(a),(c),(d) and (e);
Clause 9 – 9(a), (c), (d) and (e);
Clause 12(a), (d) and (f);
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.
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.
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.
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)
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
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.
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
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.
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 (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:
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
the third party otherwise ensures appropriate safeguards pursuant to
Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing
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
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
The Data Importer shall promptly and adequately deal with enquiries from the
Data Exporter that relate to the processing under these Clauses.
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.
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.
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.
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 Subprocessors
The Data Importer has the Data Exporter’s general authorisation for the
engagement of Subprocessor(s) from the list specified in Annex 3. The data
importer shall specifically inform the Data Exporter in writing of any
intended changes to that list through the addition or replacement of
Subprocessors at least 14 days in advance, thereby giving the Data Exporter
sufficient time to be able to object to such changes prior to the engagement
of the Subprocessor(s). The Data Importer shall provide the Data Exporter
with the information necessary to enable the Data Exporter to exercise its
right to object.
Where the Data Importer engages a Subprocessor 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 Subprocessor complies with the obligations to which the
Data Importer is subject pursuant to these Clauses.
The Data Importer shall provide, at the Data Exporter’s request, a copy of
such a Subprocessor 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.
The Data Importer shall remain fully responsible to the Data Exporter for
the performance of the Subprocessor’s obligations under its contract with
the Data Importer. The Data Importer shall notify the Data Exporter of any
failure by the Subprocessor to fulfil its obligations under that contract.
The Data Importer shall agree a third-party beneficiary clause with the
Subprocessor 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 Subprocessor contract and to
instruct the Subprocessor to erase or return the Personal Data.
Clause 10: Data Subject rights
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.
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
In fulfilling its obligations under paragraphs (a) and (b), the data
importer shall comply with the instructions from the Data Exporter.
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.
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.
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 Subprocessor) 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.
The Parties agree that if the Data Exporter is held liable under paragraph
(c) for damages caused by the Data Importer (or its Subprocessor), 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
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 (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.
The Data Importer may not invoke the conduct of a Subprocessor to avoid its
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 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.