Intra-group data transfer agreement
This Agreement sets out the terms on which any member company of the Cubiks Group (acting as a Processor of Personal Data on behalf of a Controller) engages another member company within the Cubiks Group to act as Sub-Processor of such Personal Data.
This Agreement is made between the members of the Cubiks Group with effect retrospectively from 25 May 2018 and is in consideration of their mutual undertakings and benefits.
1.1 The Processor is the member of the Cubiks Group with whom the Controller contracts.
1.2 The Sub-Processor is a member of the Cubiks Group who processes Personal Data of the Controller at the request of the Controller and/or Processor.
Agreement: this Data Sub-Processing Agreement
Applicable Laws: European Data Protection Laws and local data protection laws and regulations in the jurisdictions where the relevant Cubiks Group company is registered, as the case may be.
Clauses: the Standard Contractual Clauses for the transfer of Personal Data from the European Union from controllers to processors established in third countries which do not ensure an adequate level of data protection as required by Article 45 GDPR and as set out at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087 or any amended or replacement clauses as may be approved by the European Commission.
Compliance Officer: the authorised person within the Cubiks Group.
Controller: a customer of a member of the Cubiks Group.
Cubiks Group: Cubiks Group Limited and subsidiary companies controlled by it. These companies are listed at https://www.cubiks.com/legal/cubiks-group-companies
Data Agreement: The Data Agreement made between the Controller and the Processor which is supplementary to the Services Agreement. The current standard Cubiks Data Agreement is located at
Data Subject: an identified or identifiable natural person about whom Personal Information is held. 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 of more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identify of that natural person.
Delete: to delete or anonymise Personal Data so that it is no longer identifiable. Deleted and Deletion shall be construed accordingly.
Directive: the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, entitled “on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data” and any modification of such directive or any replacement directive.
European Data Protection Laws: GDPR including any amendments and successor legislation in the European Economic Area.
European Economic Area: the European Union (“EU”), including Iceland, Liechtenstein and Norway, but excluding Switzerland.
Force Majeure: where either party is prevented, hindered or delayed from observing or performing its obligations due to any act beyond their reasonable control.
GDPR: the General Data Protection Regulation (EU 2016/679) and any national implementing laws.
Information for Data Subjects: the policy document located here and referred to in Appendix 1.
Member State: shall mean a state which is a member of the European Economic Area.
Nominated Contact: Please see Appendix 2.
Other Applicable Laws: data protection or privacy legislation which may be applicable to the Controller and/or the Processor other than European Data Protection Laws.
Personal Data: any information relating to a Data Subject. Personal data refers both to data Processed on a computer and to certain kinds of manually Processed data, for example live assessment data during an assessment centre exercise and/or interview material.
Processing: any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automatic 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, erasure or destruction. Process and Processed shall be construed accordingly.
Research Data: Personal Data used for Research Purposes.
Research Purposes: monitoring, validation, statistical, benchmarking, product development, historical and management purposes.
Services Agreement: any agreement to which this Agreement applies which is between the Controller and the Processor for the use of HR assessment services (including online tools) delivered in accordance with a Software as a Service (SaaS) agreement, licence or other agreement or order.
Supervisor: the Data Protection Supervisory Authority, as defined in Article 28 of Directive, of the Member State in which the Controller is established. If the Controller is established in more than one Member State, it shall refer to the Data Protection Supervisory Authority for the Member State in which the Controller is acting for the purposes of this Agreement.
3 OBLIGATIONS OF SUB-PROCESSOR
3.1 To comply with Applicable Laws, where providing the services as further specified in Appendix 3.
3.2 To Process Personal Data only on the written instructions (including e-mail) of the Controller and Processor including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by EU or Member State law to which the Sub-Processor is subject. In such a case the Sub-Processor shall inform the Controller and the Processor of that legal requirement before Processing, unless EU or Member State law prohibit such information on grounds of public interest.
3.3 Sub-Processor shall immediately inform the Controller or Processor if, in Sub-Processor’s opinion, an instruction of Controller or Processor under clause 3.2 infringes Applicable Laws.
3.4 To Process the Personal Data in accordance with the Information for Data Subjects (as set out in Appendix 2).
3.5 To ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3.6 To ensure that it has in place appropriate technical and organisational measures, in such a manner that Processing by the Sub-Processor meets the requirements of Applicable Laws. Where European Data Protection Laws apply, the Sub-Processor must comply with Article 32 of GDPR. At the time of signature, Cubiks Group is ISO 27001 certified for Information Security Management (certificate number IS 639040) and can therefore demonstrate appropriate technical and organisational measures that are equivalent across all jurisdictions whether within or outside the EU.
3.7 The Sub-Processor may disclose the Personal Data only to other members of the Cubiks Group who are bound by this Agreement and the trusted third Parties as listed in the Sub-Processors List (together the “Approved Sub-Processors”). All Approved Sub-Processors must be subject to the same obligations as the Sub-Processor. However, the Sub-Processor remains fully responsible to the Controller and the Processor for their compliance with the terms and conditions herein. The Sub-Processor may not disclose the Personal Data to Parties other than the Approved Sub-Processors, without the Processor’s prior written consent acting on the instructions or with approval of the Controller. The Compliance Officer is authorised to amend the Sub-Processor list.
3.8 To assist the Processor to support the Controller in ensuring compliance with its obligations under the Applicable Laws with respect to Data Subject rights, security, Personal Data breach notifications, data protection impact assessments, Deletion or return of data and prior consultations with supervisory authorities or regulators.
3.9 Where European Data Protection laws apply, not to transfer any Personal Data outside of the European Economic Area except to a third country which the European Commission considers has an adequate level of protection or in circumstances where the Controller, the Processor or the Sub-Processor has provided appropriate safeguards in relation to the transfer and the Data Subject has enforceable rights and effective legal remedies.
At the request of any member of the Cubiks Group established inside the European Economic Area, each member of the Cubiks Group established outside the European Economic Area agrees as follows:
- to act as a Data Importer of Personal Data on behalf of a Controller;
- if required, to formally enter into the Clauses directly with the Controller for the transfer of data from the European Union, as currently valid and set out in Appendix 4 (the “Clauses”) or as amended or updated by the appropriate EU authorities from time to time;
- in any event, to process the Personal Data of any Controller in accordance with the Clauses which are set out in Appendix 4 and incorporated into this Agreement; and
- to enter into any amendment or update of the Clauses as may be required by the Controller or the Processor at a later date, such amendments to be incorporated into the Agreement by reference.
3.10 To notify the nominated contact of the Processor immediately and in accordance with Applicable Laws on becoming aware of a Personal Data breach or potential breach by the Sub-Processor or any - Approved Sub-Processor. Sub-Processor shall reasonably assist Processor on handling the Personal Data breach and shall provide Processor with all reasonably necessary information regarding the Personal Data breach.
3.11 At the written direction of the Processor acting on the instructions of the Controller, to Delete Personal Data and to return Personal Data and copies thereof to the Processor or the Controller unless required by EU or Member State laws to store the Personal Data. Unless directed otherwise by the Controller or the Processor, pseudonymised Personal Data may be retained by the Sub-Processor subject to the safeguards and derogations in Article 89 of GDPR.
3.12 To maintain and, upon request, make available complete and accurate records and information to demonstrate its compliance with the Obligations set out in this paragraph 3 and allow for audits by the Controller or the Processor or their designated auditor.
3.13 Where the Controller or Processor requests assistance in connection with Data Subject rights (including without limitation right of access, rectification, erasure, restriction of Processing and to object to Processing), the Sub-Processor shall co-operate to assist the Controller and/or Processor to comply with its obligations under Applicable Laws.
4 OBLIGATIONS OF PROCESSOR
4.1 To comply with Applicable Laws.
4.2 To ensure that it has in place appropriate technical and organisational measures, in such a manner that Processing will meet the requirements of Applicable Laws whilst the Personal Data is subject to Processing by the Processor. Where European Data Protection Laws apply, the Processor will comply with Article 32 of GDPR. At the time of signature, Cubiks Group is ISO 27001 certified for Information Security Management (certificate number IS 639040) and can therefore demonstrate appropriate technical and organisational measures that are equivalent across all jurisdictions whether within or outside the EU.
4.3 To have a written agreement regarding the processing of Personal Data with the Controller that specifies the Controller’s and the Processor’s rights and obligations. The Processor acknowledges and agrees that the Processing of any Personal Data provided by the Processor to the Sub-Processor has been and will continue to be carried out by the Processor in accordance with Applicable Laws and in accordance with the Information for Data Subjects.
4.4 To notify the Sub-Processor as to any Data Subject request where the Controller or Processor requests the support of the Sub-Processor as soon as possible and to give appropriate instructions to the Sub-Processor in a timely manner.
The Appendices to this Agreement form an integral part of this Agreement.
All contacts between the Parties concerning this Agreement must be between the persons nominated in Appendix 2, and such other persons as the Nominated Contacts may from time to time authorise in writing. Any changes to the Nominated Contacts of one party must be notified to Nominated Contact(s) of the other.
7.1 Nothing in this Agreement shall limit or exclude liability which may not be limited or excluded by Applicable Laws. The Parties’ liability towards each other is limited in accordance with the liability of the Processor towards the Controller under the Data Agreement.
7.2 The Parties agree that if one party is held liable for a violation of this Agreement committed by the other party, the latter will, to the extent to which it is liable and subject to the limit stated in paragraph 7.1 above, indemnify the non-breaching party for any cost, charge, damages, expenses or loss it has incurred. Indemnification is contingent upon:
- the party claiming indemnification promptly notifying the indemnifying party of a claim; and
- the indemnifying party being given the possibility to cooperate with the party claiming indemnification in the defence and settlement of the claim.
7.3 Neither the Processor nor any Sub-Processor shall be liable (i) in case of Force Majeure, (ii) for indirect or unforeseeable damages (including loss of profits, anticipated savings, reputational damages or loss of business opportunity).
8.1 This Agreement enters into force on 25 May 2018 and continues to be in force for as long as Personal Data is shared between Processors and Sub-Processors.
8.2 The Parties agree that the termination of the Services Agreement at any time, in any circumstances and for whatever reason does not exempt them from the obligations and/or conditions under this Agreement.
8.3 Subject to a reasonable time interval to ensure that the Controller has made alternative arrangements for Processing the Controller’s Personal Data, and subject to these arrangements working satisfactorily, the Sub-Processor shall, insofar as it is practicable, Delete all copies of the Controller’s Personal Data held and Processed by the Sub-Processor.
8.4 A Sub-Processor automatically ceases to be a party to this Agreement at the moment it ceases to be part of the Cubiks Group.
9.1 If a Sub-Processor is in breach of its obligations under this Agreement, the Processor may temporarily suspend the transfer of Personal Data to the Sub-Processor until the breach is repaired or the contractual relationship for the relevant Services Agreement is terminated in accordance with Clause 9.2.
9.2 The Processor, without prejudice to any other rights it may have against the Sub-Processor, may terminate if:
- the transfer of Personal Data to the Sub-Processor is temporarily suspended by the Processor for longer than one (1) month pursuant to Clause 9.1; or
- compliance by the Sub-Processor with this Agreement would put it in breach of its legal or regulatory obligations.
10 VARIATION OF THIS AGREEMENT
The Parties undertake to vary or modify the terms of this Agreement:
- to correct such deficiencies as may become apparent in this Agreement in relation to (i) the application to the Processing of Applicable Laws or their interpretation by the Member State to which the Controller is subject or
- any variation necessitated by any relevant subsidiary legislation, or by any amendment to European Data Protection Laws; or
- any variation to the Processing requirements of a Controller; or
- any other change necessitated by Applicable Law.
11 APPLICABLE LAW AND DISPUTES
11.1 This Agreement is governed by and construed in accordance with the laws of England and Wales.
11.2 All disputes that arise out of or in connection with this Agreement must be brought exclusively before the English courts.
Cubiks companies that are party to this Agreement:
|Cubiks Group Limited||Company number: 04999756|
|Cubiks Holdings Limited||Company number: 03883240|
|Cubiks IBO Limited||Company number: 08860890|
|Cubiks Belgium SA/NV||Company number: 640.717|
|Cubiks Limited||Company number: 03840112|
|Cubiks Limited |
|This is a branch of Cubiks Limited|
|Cubiks Limited |
(Abu Dhabi Branch)
|This is a branch of Cubiks Limited|
|Cubiks Management Consulting (Shanghai) Co Limited||Business Licence Reg No: 4100002201703210009|
|Cubiks (Denmark) AS||Company No: CVR-Nr. 25 38 46 01|
|Cubiks Finland Oy||Company No: 0827533-2|
|Cubiks (France) SAS||Company No: B 432 498 855|
|Cubiks (Germany) GmbH||Company No: HRB 49152|
|Cubiks (Hong Kong) Limited||Company number: 677217|
|Cubiks Malaysia) Sdn Bhd||Company number: 520451-U|
|Cubiks (Netherlands) BV||Company number: 1712454|
|Cubiks Norway AS||Company Number: 982 137 047|
|Cubiks Singapore Pte Ltd.||Company number: 200001564G|
|Cubiks Sweden AB||Company No: 556040-4187|
|Cubiks USA Inc.||Company No: 4938789-8100|
|GraduACE Selection Limited||Company No: 677217|
1. The Country Manager of each of the Processor and the Sub-Processor and
Subject-matter of processing
Processing of personal data for human resources purposes and assessment services, assisting in the recruitment, development and assessment of staff for the data controller group. Online assessments may be used for Profiling to assess candidate suitability for a role.
Duration of the processing
For as long as Personal Data is shared between Processors and Sub-Processors.
Nature of the processing
Access, use, adaption and storage of Personal Data. Monitoring, validation, statistical research and benchmarking for product development and management purposes.
Purpose of processing
Performance under the Services Agreement between the Processor and the Controller.
Categories of data subjects
Subjects of Cubiks assessments (current employees, role candidates) and, where applicable, reviewers.
Type of personal data
Contact information, limited (optional and non-optional) bio data, assessment data (including results), and further data provided by the Controller.
APPENDIX 4: Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
The Data Processor in each case (the data exporter)
The Data Sub-Processor in each case (the data importer)
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex A.
For the purposes of the Clauses:
a) personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);
b) the data exporter means the controller who transfers the personal data;
c) the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
d) the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;
e) the applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
f) technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2 DETAILS OF THE TRANSFER
The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A which forms an integral part of the Clauses.
3 THIRD-PARTY BENEFICIARY CLAUSE
3.1 The data subject can enforce against the data exporter this Clause 3, Clause 4(b) to Clause 4(i), Clause 5(a) to Clause 5(e) and Clause 5(g) to Clause 5(j), Clause 6.1 and Clause 6.2, Clause 7, Clause 8.2 and Clause 9 to Clause 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to Clause 5(e) and Clause 5(g), Clause 6, Clause 7, Clause 8.2 and Clause 9 to Clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor this Clause 3.1, Clause 5(a) to Clause 5(e) and Clause 5(g), Clause 6, Clause 7, Clause 8.2, and Clause 9 to Clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3.4 The Parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
4 OBLIGATIONS OF THE DATA EXPORTER
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Annex B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Annex B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to Clause 4(i).
5 OBLIGATIONS OF THE DATA IMPORTER
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Annex B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex B which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11; and
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
6.1 The Parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
7 MEDIATION AND JURISDICTION
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The Parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8 COOPERATION WITH SUPERVISORY AUTHORITIES
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The Parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
9 GOVERNING LAW
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
10 VARIATION OF THE CONTRACT
The Parties undertake not to vary or modify the Clauses. This does not preclude the Parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
12 OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA PROCESSING SERVICES
12.1 The Parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
TO THE STANDARD CONTRACTUAL CLAUSES
This Annex forms part of the Clauses and must be completed and signed by the Parties.
The personal data to be processed is specified in the relevant Services Agreement and Data Agreement with each Controller
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Annex A.
Please complete the form below with an overview of the data processing activities within Cubiks Group
The data exporter is (please specify briefly your activities relevant to the transfer)
The data importer is (please specify briefly your activities relevant to the transfer)
The personal data transferred concern the following categories of data subjects (please specify)
Categories of data
The personal data transferred concern the following categories of data (please specify)
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify)
The personal data transferred will be subject to the following basic processing activities (please specify)
[TO THE STANDARD CONTRACTUAL CLAUSES]
This Annex B forms part of the Clauses and must be completed and signed by the Parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clause 4(d) and Clause 5(c) (or documents/legislation attached):
Cubiks is ISO/IEC 27001:2013 certified for Information Security Management and operates an Information Security Management System (ISMS) supporting the development, administration, hosting and protection of Cubiks assessment delivery platforms and related client information entrusted not Cubiks care. This is in accordance with the Statement of Applicability version 1.2.
Certificate Number: IS 639040
© 2019 Cubiks Intellectual Property Limited