OVHcloud Data Processing Agreement
Last Updated: December 23, 2019
This Data Processing Agreement ("DPA") forms part of the OVHcloud Terms of Service (the "Agreement") or other written or electronic agreement between OVH US LLC dba OVHcloud™, with its principal place of business at 11480 Commerce Park Drive, Suite 500, Reston, VA 20191 ("OVHcloud") and Customer for the purchase of the OVHcloud Services to reflect the parties' agreement with regard to the Processing of Personal Data and Service Data. All terms not defined herein shall have the meaning ascribed to them in the Agreement.
OVHcloud provides certain Services to the Customer in accordance with the Agreement. This DPA sets forth the data protection terms and obligations that apply when OVHcloud processes Personal Data (defined below) on behalf of the Customer in the course of providing the OVHcloud Services. The parties have agreed to enter into this DPA to address the rights and obligations that apply to the Customer under the Applicable Data Protection Laws (as defined below) concerning OVHcloud's Processing (as defined below) of Personal Data on behalf of the Customer.
Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below:
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
"Applicable Data Protection Laws" means all applicable legislation relating to the Processing of Personal Data under the Agreement, including without limitation, the United States and its states, the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time;
"CCPA" means the California Consumer Privacy Act, Cal. Civ. Code Section 1798.100 et seq., and its implementing regulations.
"Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data;
"Data Subject(s)" means the individual(s) to whom Personal Data relates;
"EEA" means the European Economic Area;
"End Users" means Customer's customers, prospects, employees, consultants or independent contractors, suppliers and other individuals or third parties;
"OVHcloud Services" has the meaning given to it in the Agreement;
"Personal Data" means any information relating to an identified or identifiable Data Subject or describing, capabable of being associates with, or reasonably linkable, directly or indirectly, to Users or households, including "personal information" as that terms is defined in the CCPA, when required by Applicable Data Protection Law;
"Processing" means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction performed upon Personal Data. The terms "process", "processes" and "processed" will be construed accordingly;
"Processor" means any natural or legal person which agrees to receive Personal Data from the Controller for the purposes of Processing such data on behalf of the latter and in accordance with its written instructions. Any references shall also mean OVHcloud operating as a "service provider," as defined in CCPA Section 1798.140 (v), with respect to the processing of Service Data;
"Relationship Data" means any account-related data provided by the Customer to OVHcloud during the purchase, sign up, use or support of an account. Relationship Data may include Personal Data;
"Security Breach" means any accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data and/or Service Data to the extent it includes Personal Data;
"Security Measures" means OVHcloud's technical and organizational measures specified in Section 3(k) of this DPA;
"Service Data" means any data (including any Personal Data), the extent of which is determined and controlled by the Customer in its sole discretion, contained in any applications, files, data, information or other content uploaded to or published, displayed or backed up by Customer, or any of its end users, through the OVHcloud Services, relating to Customer and/or the its employees, customers, suppliers, service providers, business partners, consultants and other end users. Service Data does not include Usage Data or Relationship Data;
"Standard Contractual Clauses" means Annex 2 attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries;
"Sub-processor" means any Processor engaged by OVHcloud;
"Usage Data" means any data (other than Service Data) relating to Customer's use and consumption of the OVHcloud Services, including, without limitation, information about the amount of computing and storage resources purchased or consumed, data relating to the configuration, performance or features of the OVHcloud Services, configuration settings, features accessed, IP addresses, usernames, and performance metrics.
PROCESSING OF SERVICE DATA
- Scope and Role. The subject-matter of Processing of Service Data by OVHcloud is the provision of the OVHcloud Services to Customer that involves the Processing of Service Data. The parties acknowledge and agree that with regard to the Processing of Service Data, Customer is the Controller or the Processer as applicable, OVHcloud is the Processor or sub-processor as applicable, and that OVHcloud may engage Sub-processors only pursuant to the requirements set forth in Section 3.13 "Sub-processors" below. OVHcloud will process Service Data only as a Processor on Customer's behalf and for the purposes of providing the Services as set forth in the Agreement, or as otherwise permitted for processors by Applicable Data Protection Law. OVHcloud will not disclose Service Data to any third party, except in accordance with this DPA and the Agreement or where required by law.
- Instructions for Data Processing. OVHcloud will only process Service Data on Customer's lawful instructions, including with regard to transfers of Service Data to a third country or an international organization, as set forth in this DPA, which Customer agrees constitutes its complete and final instructions to OVHcloud in relation to Processing of Service Data. Processing outside the scope of this DPA (if any) will require the prior written agreement between the parties. To the extent that any change in Customer's instructions for Processing incurs additional fees, Customer agrees to pay to OVHcloud any associated increase in fees for carrying out such instructions, unless the change in the instructions is motivated by a change in the Applicable Data Protection Law or direct instructions from the competent data protection authority according to the Applicable Data Protection Law. Upon notice in writing, Customer may terminate this DPA and the Agreement if OVHcloud declines to follow Customer's instructions that are outside the scope of this DPA. If OVHcloud cannot process the Service Data in accordance with Customer's instructions due to a legal requirement under Applicable Data Protection Law, OVHcloud shall inform Customer about the legal requirement before Processing the data, unless that law prohibits such information because of important grounds of public interest or an equivalent concept. As a service provider, OVHcloud will process Service Data only as necessary to perform the Services, and will not collect, use, retain, access, share, transfer, or otherwise process Service Data for any purpose not related to providing such Services, for any purpose other than as set out in the Agreement, or as otherwise permitted by the CCPA.
- Customer ComplianceCustomer shall, in its use of the Services, Process Service Data, and subsequently issue any Processing instructions to OVHcloud in accordance with the requirements of Applicable Data Protection Laws with respect to processors or service providers, including any applicable requirement to provide notice to Data Subjects and/or End Users of the use of OVHcloud as Processor or Sub- Processor.
Customer shall have sole responsibility for the accuracy, quality, and legality of Service Data and the means by which Customer acquired Service Data. This includes obtaining all consents and rights necessary for OVHcloud to process Service Data in accordance with Applicable Data Protection Laws and this DPA. Customer specifically acknowledges that its use of the Services will not violate the rights of any Data Subject and/or End User that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under Applicable Data Protection Law.
If Customer is a Processor, Customer warrants that Customer's instructions and actions with respect to the relevant Service Data, including Customer's designation of OVHcloud as a Sub-processor, have been authorized by the relevant Controller. Customer shall not instruct OVHcloud to process or disclose Service Data for any purpose other than as set out in the Agreement, this DPA, or as otherwise agreed in writing between the parties, or as otherwise permitted by Applicable Data Protection Law.
- Confidentiality. OVHcloud will ensure that all persons authorized to process Service Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Deletion and Retrieval of Service Data. Before the effective date of the expiration or termination of the Agreement, Customer may retrieve a copy of Service Data and, if Customer elects so, delete Service Data from the OVHcloud Services. For fifteen (15) calendar days following the effective date of the expiration or termination of the Agreement, OVHcloud will enable Customer to retrieve Service Data from OVHcloud's systems, at no additional cost to Customer, provided that (i) prior to the effective date of the expiration or termination of the Agreement Term Customer notifies OVHcloud via email (directed to firstname.lastname@example.org) that Customer elects to retrieve the data, and (ii) Customer is in compliance with the Agreement. If Customer does not elect to retrieve Service Data in accordance with the foregoing, OVHcloud is hereby instructed to delete the Service Data promptly upon expiration or termination of the Agreement, unless the applicable law requires storage. If OVHcloud is unable to delete Service Data for technical or other reasons, OVHcloud will apply measures to ensure that Service Data is blocked from any further Processing.
- Third Party Requests for Service Data. If OVHcloud receives a request from Data Subjects to exercise their rights with respect to the Service Data (including, but not limited to, the right of access, right to rectification, restriction of Processing, erasure, data portability, object to the Processing, or the right not to be subject to an automated individual decision making), or a Data Subject complaint or request from a competent authority in relation to the Service Data, OVHcloud, to the extent legally permitted, will redirect the third party to the Customer and Customer will be responsible for responding to any such request. OVHcloud will not respond independently to such requests and will provide reasonable assistance to Customer so that Customer can make the information available to the third party. If OVHcloud is required to respond to a court order, warrant, audit or agency action and that occurrence demands that OVHcloud discloses Service Data, OVHcloud will promptly notify Customer in advance and provide Customer with a copy of the demand unless legally prohibited from doing so by applicable law. To the extent that OVHcloud incurs any additional costs associated with third party requests, Customer will reimburse OVHcloud its time and expenses.
- Security Breach. To the extent OVHcloud becomes aware of a Security Breach, OVHcloud will promptly notify Customer of said Security Breach. OVHcloud will comply with the Security Breach-related obligations directly applicable to it under the Applicable Data Protection Laws and will provide reasonable assistance to Customer in Customer's compliance with its Security Breach-related obligations.
The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users.
- Data Protection Impact Assessments and Consultations. OVHcloud will provide reasonable assistance to the Customer during the performance of a data protection impact assessment, and, if applicable, in connection with consultation with the competent data protection authority, if the Customer is required to engage in such activities by Applicable Data Protection Law and solely to to the extent (i) Customer does not otherwise have access to the relevant information, and (ii) such information is available to OVHcloud.
- Protected Health Information. Customer agrees that it will not upload into the OVHcloud Services nor include within Service Data any data which is regulated by the United States Health Insurance Portability and Accountability Act unless Customer has entered into a business associate agreement with OVHcloud.
- Data Center Locations. Customer will select the location where Service Data will be stored. Customer authorizes OVHcloud to store Service Data in the location that it has chosen when purchasing the OVHcloud Services. In the case the Service Data will be processed in a data center in the EEA, the Personal Data contained therein will be subject to the GDPR and the complementing EEA member state data protection law, or any other statutory data protection law and regulation applicable to such data that will substitute and repeal such law. By uploading Service Data into the OVHcloud Services, Customer acknowledges and agrees that Service Data may be transferred and accessed from around the world, including to and from the location in which Service Data is maintained.
- OVHcloud Security Responsibilities. OVHcloud is responsible for implementing and maintaining appropriate technical, organizational and security measures, to protect any Service Data processed hereunder against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of Processing. These measures will depend on the OVHcloud Services that are being provided to Customer and will include, at a minimum, the OVHcloud Security Measures set out in Annex 1 to this Agreement.
- Audit of Technical and Organizational Measures. Upon request and subject to execution of a non-disclosure agreement in a form acceptable to OVHcloud, OVHcloud will provide an annual examination report issued to it by third-party auditors selected by OVHcloud of its technical and organizational measures. Any further audit will be conducted in accordance with OVHcloud’s standard audit procedures as applicable from time to time and at Customer's expense.
- Sub-Processing. Customer agrees that OVHcloud may use Sub Processors to fulfill the contractual obligations under this DPA and the Agreement or to provide certain services on OVHcloud’s behalf, such as providing support services. Customer acknowledges and agrees that (a) OVHcloud’s Affiliates may be retained as Sub-processors; and, (b) OVHcloud and its Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. OVHcloud or its Affiliates have entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Personal Data and Service Data, should it contain Personal Data, to the extent applicable to the nature of the Services provided by such Sub-processor.
Customer hereby grants OVHcloud general authorization to engage Sub-processors. For the avoidance of doubt, the above authorization constitutes Customer's prior written consent to the Sub-processing by OVHcloud for purposes of Clause 11 of the Standard Contractual Clauses. A list of the Sub-processors is attached hereto in Annex 3. If OVHcloud engages a Sub-processor to process any Service Data, OVHcloud will (i) inform Customer of any intended changes concerning the addition or replacement of such Sub-processors, to the greatest extent permitted by applicable law, and Customer will have an opportunity to object to such changes on reasonable grounds within fifteen (15) business days after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party; (ii) keep Customer informed if there is any change to the role or status of the Sub-processor; and (iii) enter into a written agreement with the Sub-processor that imposes on the Sub-processor the same obligations that apply to OVHcloud under the DPA. OVHcloud will be responsible for any breaches of this DPA that are caused by any such Sub-processor.
INTERNATIONAL DATA TRANSFERS
- Customer acknowledges that OVHcloud may process Personal Data in countries outside of the EEA to the extent necessary to provide the OVHcloud Services and any associated support and assistance to the Customer.
- OVHcloud has certified to the EU-U.S. and Swiss-U.S. Privacy Shield frameworks as administered by the U.S. Department of Commerce and commits to comply with its obligations for all Personal Data (including, for the avoidance of doubt, Service Data, Relationship Data and Usage Data) transferred from the European Economic Area and/or Switzerland to the United States under the Privacy Shield throughout the term of this DPA.
- The Standard Contractual Clauses at Annex 2 will apply to Personal Data contained in the Service Data that originates from the EEA and is transferred outside the EEA, either directly or via onward transfer, to any country that is not recognised by the European Commission as providing an adequate level of protection for personal data.
- In the event that the OVHcloud Services are covered by more than one transfer mechanism, the transfer of Service Data will be subject to a single transfer mechanism in accordance with the following order of precedence: (1) OVHcloud’s EU-U.S. and Swiss-U.S. Privacy Shield framework self-certifications, if not, then (2) the Standard Contractual Clauses.
- Any claims brought under this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
- Customer acknowledges that OVHcloud is reliant on the Customer for direction as to the extent to which OVHcloud is entitled to use and process Service Data on behalf of Customer in performance of the OVHcloud Services. Consequently, OVHcloud will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by OVHcloud, to the extent that such action or omission resulted directly from the Customer's instructions or from Customer's failure to comply with its obligations under the Applicable Data Protection Law.
Annexes and Appendices to this DPA and the Standard Contractual Clauses will be deemed to be an integral part of this DPA, where applicable. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this DPA, the terms of this DPA will control. If there is a conflict between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses will control. In the event the Agreement ends or is terminated the obligations under this DPA shall cease (save that Sections 3(k) and 3(l) shall continue to apply so long as OVHcloud and/or its sub-Processors process Service Data on behalf of Customer).
Annex 1 – Security Measures
OVHcloud has taken and will maintain the appropriate administrative, technical, physical and procedural security measures for protection of the security, confidentiality and integrity of the personal data as described on OVHcloud’s Data Security webpage, accessible on us.ovhcloud.com/resources/data-security, or otherwise made reasonably available by OVHcloud.
Annex 2 – Standard Contractual Clauses (processors)
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 exporter")
OVH US LLC dba OVHcloud™
with its principal location at 11480 Commerce Park Drive, Suite 500, Reston, VA 20191
(the "data importer")
each a "party"; together "the parties",
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 Appendix 1.
For the purposes of the Clauses:
- '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;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his 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;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 his instructions, the terms of the Clauses and the terms of the written subcontract;
- '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;
- '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.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(b), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(b), and Clauses 9 to 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.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(b), and Clauses 9 to 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 subprocessor shall be limited to its own processing operations under the Clauses.
- 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.
Obligations of the data exporter
The data exporter agrees and warrants:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- that it will ensure compliance with the security measures;
- 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;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(c) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing 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;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- 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;
- 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;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- 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,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- 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;
- 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;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 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;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- 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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- if a data subject is not able to bring a claim for compensation in accordance with paragraph (a) against the data exporter, arising out of a breach by the data importer or his subprocessor 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 of 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 subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs (a) and (b), arising out of a breach by the subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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.
Cooperation with supervisory authorities
- 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.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, 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.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph (b). In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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 Clause.
- 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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor 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 (a) 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 subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph (a) shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (e), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor 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.
- The data importer and the subprocessor 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 (a).
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
The data exporter is the entity identified as “Customer” in the DPA.
The data importer is OVH US LLC dba OVHcloud™, a global, hyper-scale cloud provider that offers cloud infrastructure and associated services.
The personal data transferred concern the following categories of data subjects:
Employees, customers, suppliers, service providers, business partners, and consultants of the data exporter, and other end users the extent of which is determined and controlled by the data exporter in its sole discretion.
Categories of data
The personal data transferred is Service Data as defined in the DPA, which is processed by the data importer on behalf of the data exporter.
Special categories of data (if appropriate)
Sensitive personal data is not intentionally processed or transferred on a regular basis. However, there may be occasions where the data exporter's end users may store sensitive personal data on the OVHcloud Services without the data exporter's knowledge. Depending on the nature of the OVHcloud Services provided, the following sensitive personal data may be uploaded to or published, displayed or backed up through the OVHcloud Services: data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying an individual, data concerning health or data concerning an individual’s sex life or sexual orientation.
The personal data transferred will be subject to the following basic processing activities:
Computing, storage and such other processing activities performed pursuant to the DPA and the Agreement and initiated by the data exporter from time to time.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix 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 Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organisational security measures implemented by the data importer are as described in the DPA.
Annex 3 – List of Subprocessors
As part of the performance of the OVHcloud Services, OVHcloud is using subprocessors that may take part in the data processing activities performed by OVHcloud.
|OVH Limited||United Kingdom|
|OVH Hosting Limited||Ireland|
|OVH Hebergement INC||Canada|
|OVH Sp. Zo.o.||Poland|
|OVH Hosting Sistemas Informaticos unipessoal||Portugal|
|OVH Singapore PTE Ltd||Singapore|
|OVH Australia PTY Ltd||Australia|
|OVH Tech R&S Private Limited||India|