Section 5 EU Standard Model Clauses for Processor to Controller [Module 4]
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) and Clause 8.3(b);
Clause 15.1(c), (d) and (e);
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 Exporter shall process the Personal Data only on documented
instructions from the Data Importer acting as its Controller.
The Data Exporter shall immediately inform the Data Importer if it is unable
to follow those instructions, including if such instructions infringe
Regulation (EU) 2016/679 or other Union or Member State data protection law.
The Data Importer shall refrain from any action that would prevent the data
exporter from fulfilling its obligations under Regulation (EU) 2016/679,
including in the context of sub-processing or as regards cooperation with
competent supervisory authorities.
After the end of the provision of the processing services, the Data Exporter
shall, at the choice of the Data Importer, delete all Personal Data
processed on behalf of the Data Importer and certify to the Data Importer
that it has done so, or return to the Data Importer all Personal Data
processed on its behalf and delete existing copies.
8.2 Security of processing
The Parties shall implement appropriate technical and organisational
measures to ensure the security of the data, including during transmission,
and 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 of the Personal Data, the nature, scope, context
and purpose(s) of processing and the risks involved in the processing for
the Data Subjects, and in particular consider having recourse to encryption
or pseudonymisation, including during transmission, where the purpose of
processing can be fulfilled in that manner.
The Data Exporter shall assist the Data Importer in ensuring appropriate
security of the data in accordance with paragraph (a). In case of a personal
data breach concerning the Personal Data processed by the Data Exporter
under these Clauses, the Data Exporter shall notify the Data Importer
without undue delay after becoming aware of it and assist the Data Importer
in addressing the breach.
The Data Exporter shall ensure that persons authorised to process the
Personal Data have committed themselves to confidentiality or are under an
appropriate statutory obligation of confidentiality.
8.3 Documentation and compliance
The Parties shall be able to demonstrate compliance with these Clauses.
The Data Exporter shall make available to the Data Importer all information
necessary to demonstrate compliance with its obligations under these Clauses
and allow for and contribute to audits.
Clause 9: [not used]
Clause 10: Data Subject rights
The Parties shall assist each other in responding to enquiries and requests made
by Data Subjects under the local law applicable to the Data Importer or, for
data processing by the Data Exporter in the EU, under Regulation (EU) 2016/679.
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.
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: [not used]
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
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
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 a country allowing for third-party
beneficiary rights. The Parties agree that this shall be the law of the Republic
Clause 18: Choice of forum and jurisdiction
Any dispute arising from these Clauses shall be resolved by the courts of The
Republic of Ireland.