JOHNSON CONTROLS DATA PROCESSING ADDENDUM –

JOHNSON CONTROLS AS PROCESSOR

 

This Data Processing Addendum, including its Schedules and Appendices, (“DPA”) forms part of the Agreement or other written or electronic agreement between Johnson Controls (hereinafter referred to as “JCI”) and Customer for the purchase by

Customer of services from JCI (identified as “Services” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.

All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

In the course of providing the Services to Customer pursuant to the Agreement, JCI may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.


HOW THIS DPA APPLIES

This DPA shall replace any conflicting terms relating to Processing of Personal Data contained in the Agreement (including any existing data processing addendum to the Agreement).


DATA PROCESSING TERMS

1. DEFINITIONS

“Canadian Privacy Laws” means the Personal Information Protection and Electronic Documents Act and the regulations thereto, and any applicable provincial legislation and regulations, including, where applicable, the Personal Information Protection Act (Alberta), the Personal Information Protection Act (B.C.), an Act respecting the protection of personal information in the private sector (Quebec) and an Act to establish a legal framework for information technology (Quebec), and any regulations to such statutes, each as amended from time-to-time.

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

Customer” means the entity that executed the Agreement.

“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom, Canada, and the United States and its states, and the People’s Republic of China, applicable to the Processing of Personal Data under the Agreement.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” means any information relating to an identified or identifiable natural person where such information is information submitted by or for Customer to the Services.

“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, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

“Security Practices Documentation” means the information available at this link: https://www.johnsoncontrols.com/-/media/jci/cyber-solutions/documents/johnson-controls-security-practices.pdf

 

“JCI” means the JCI entity which is a party to the Agreement.

“JCI’s Affiliates” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with JCI. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.


“Standard Contractual Clauses” or “SCCs” means the agreement attached hereto as Schedule 3 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means any Processor engaged by JCI.

Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR,


2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, JCI is the Processor and that JCI will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.

2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of the Data Protection Laws and Regulations applicable to Customer, including any applicable requirement to provide notice to Data Subjects of the use of JCI as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including the obtaining of any consents required. Customer specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.

2.3 JCI’s Processing of Personal Data. JCI shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) use of the Services and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. JCI shall not Process Personal Data on behalf of and in accordance with Customer’s documented instructions where those instructions are in violation of applicable law

2.4 Details of the Processing. The subject-matter of Processing of Personal Data by JCI is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Details of the Processing) to this DPA.


3. RIGHTS OF DATA SUBJECTS AND CO-OPERATION

Data Subject Request. JCI shall, on reasonable request from the Customer, and subject to any restrictions under applicable law, promptly notify Customer if JCI receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request”. Taking into account the nature of the Processing, JCI shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, JCI shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent JCI is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from JCI’s provision of such assistance.

CO-OPERATION: Upon Customer’s written request, JCI shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligations under Data Protection Laws and Regulations, and/or to assist in Customer’s response to any enquiry, investigation or audit by any regulatory authority. To the extent legally permitted, Customer shall be responsible for any costs arising from JCI’s provision of such co-operation and assistance.


4. JCI PERSONNEL

4.1 Confidentiality. JCI shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. JCI shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

4.2 Reliability. JCI shall take commercially reasonable steps to ensure the reliability of any JCI personnel engaged in the Processing of Personal Data. 


4.3 Limitation of Access. JCI shall ensure that JCI’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

4.3 Data Protection Officer. Where obliged by law, JCI has appointed a data protection officer. The appointed person may be reached at privacy@jci.com.

 

5. SUB-PROCESSORS

5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) JCI’s Affiliates may be retained as Sub-processors; and (b) JCI and JCI’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. JCI or a JCI Affiliate will enter 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 to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2 List of Current Sub-processors and Notification of New Sub-processors. On written request from Customer, JCI shall make available to Customer the current list of Sub-processors for the Services. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location. Addition of a new Sub-Processor will be notified by JCI to Customer by reasonable means, including email and other electronic means.


5.3Objection Right for New Sub-processors. If a new Sub-processor represents an unacceptable risk to the protection of the Personal Data, as determined by Customer acting reasonably, Customer may object to JCI’s use of such new Sub-processor, by notifying JCI promptly in writing within ten (10) business days after notification of the new Sub-processor to Customer by JCI. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, JCI will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub- processor without unreasonably burdening Customer. If JCI is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by JCI without the use of the objected-to new Sub-processor by providing written notice to JCI.

 

5.4 Liability. JCI shall be liable for the acts and omissions of its Sub-processors to the same extent JCI would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

 

6. SECURITY

6.1 Controls for the Protection of Personal Data. JCI shall maintain appropriate technical, physical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in the Security Practices Documentation. JCI shall retain the right to update the Security Practices Documentation but not materially decrease overall measures.

 

7. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION

JCI maintains security incident management policies and procedures and shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, use of or access to Personal Data, transmitted, stored or otherwise Processed by JCI or its Sub-processors on behalf of Customer of which JCI becomes aware (a “Personal Data Incident”). JCI shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as JCI deems necessary and reasonable to remediate the cause of such a Personal Data Incident to the extent the remediation is within JCI’s reasonable control. JCI will provide, without unreasonable delay, any information regarding the Personal Data Incident that is reasonably requested by the Customer, including all information required by Customer to comply with any reporting, recording and notification obligations applicable to Customer in connection with the Personal Data Incident, pursuant to Data Protection Laws and Regulations, as well as any information reasonably required by Customer to respond to any inquiries from relevant regulatory authorities and/or affected Data Subjects. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Data Subjects.

 

8. RETURN AND DELETION OF PERSONAL DATA

JCI shall return Personal Data (held in in any form, except electronic copies stored in the course of routine backup operations) to Customer and, to the extent allowed by applicable law, delete Personal Data in accordance with the Agreement between Customer and JCI, provided that JCI’s legal counsel may retain one archival copy for JCI’s records. JCI shall not be required to delete Customer Personal Data to the extent JCI is required by applicable law or order of a governmental or regulatory body to retain some or all of the Customer Personal Data. Where JCI is required to retain Customer Personal Data as set forth in the preceding sentence, then JCI will notify Customer of such requirement, to the extent legally permitted.

 

9. LIMITATION OF LIABILITY

Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

For the avoidance of doubt, JCI’s and its Affiliates’ total liability for all claims from Customer arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer, and, in particular, shall not be understood to apply individually and severally to Customer that is a contractual party to any such DPA.

Unless prohibited by law, to the extent that the Agreement does not include a “Limitation of Liability” section, IN NO EVENT SHALL JOHNSON CONTROLS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS DPA, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO JCI PURSUANT TO THE AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

10.  EUROPEAN SPECIFIC PROVISIONS

10.1 GDPR. JCI will Process Personal Data in accordance with the GDPR requirements directly applicable to JCI’s provision of its Services.


10.2 Data Protection Impact Assessment. Upon Customer’s request, JCI shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to JCI. JCI shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 10.2 of this DPA, to the extent required under the GDPR.


10.3 Transfer mechanisms for data transfers. Subject to the additional terms in Schedule 1, JCI makes available the transfer mechanism listed below which shall apply to any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations:

  1. The Standard Contractual Clauses set forth in Schedule 3 to this DPA

 

11. ADDITIONAL PROVISIONS WHEN CANADIAN PRIVACY LAWS APPLY

11.1 In situations where Canadian Privacy Laws apply, JCI will Process Personal Data in accordance with Canadian Privacy Laws.


11.2 Without limiting the generality of Section 2.2, in situations where Canadian Privacy Laws apply, regardless of whether Customer and/or the Data Subjects are located in Canada, Customer will provide any notices and obtain any consents required pursuant to Canadian Privacy Laws. In addition, where required, Customer will notify Data Subjects that their Personal Data may be transferred and stored outside of Canada and accessible to courts, law enforcement and national authorities in other countries, and Customer will obtain any consents required by Canadian Privacy Laws for JCI to transfer the Personal Data outside Canada and/or outside the Canadian province where the Customer and/or the Data Subjects are located.


11.3 Customer may contact JCI to request an audit of the procedures relevant to the protection of Personal Data, no more than once annually. Customer shall reimburse JCI for any time expended for any such audit at JCI’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such audit, Customer and JCI shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by JCI. Customer shall promptly notify JCI with information regarding any non- compliance discovered during the course of an audit

 

12. Invalidity and Severability.

If any provision of these Terms is found by any court of administration body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these Terms. Where permitted by applicable law, the Parties agree that in the place of the invalid provision, a legally binding provision shall apply which comes closest to what the Parties would have agreed if they had taken the partial invalidity into consideration.

 

List of Schedules

Schedule 1: Transfer Mechanism for European Data Transfers

Schedule 2: Details of the Processing

Schedule 3: Standard Contractual Clauses

 

SCHEDULE 1 - TRANSFER MECHANISM FOR EUROPEAN DATA TRANSFERS

 

1. ADDITIONAL TERMS FOR SCC SERVICES

1.1.Customers covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 1 apply to Customer which is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. For the purpose of the Standard Contractual Clauses and this Section 1, the aforementioned entities shall be deemed “data exporters”.

1.2.Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to JCI for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement (b) use of the Services and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. JCI shall not Process Personal Data on behalf of and in accordance with Customer’s documented instructions where those instructions are in violation of applicable law.

1.3. Appointment of new Sub-processors and List of current Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) JCI’s Affiliates may be retained as Sub-processors; and (b) JCI and JCI’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the SCC Services. JCI shall make available to Customer the current list of Sub-processors in accordance with Section 5.2 of this DPA

1.4. Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that JCI may engage new Sub-processors as described in Sections 5.2 and 5.3 of the DPA.

1.5.Copies of Sub-processor Agreements. The parties agree that the copies of the Sub-processor agreements that must be provided by JCI to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by JCI beforehand; and, that such copies will be provided by JCI, in a manner to be determined in its discretion, only upon request by Customer.

1.6. Audits and Certifications. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications:

Customer may contact JCI to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse JCI for any time expended for any such on-site audit at JCI’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and JCI shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by JCI. Customer shall promptly notify JCI with information regarding any non- compliance discovered during the course of an audit.

1.7. Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by JCI to Customer only upon Customer’s request.

1.8. Conflict. In the event of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Schedule 3, the Standard Contractual Clauses shall prevail.

 

 

SCHEDULE 2 - DETAILS OF THE PROCESSING

 

Nature and Purpose of Processing

JCI will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Customer in its use of the Services.

Duration of Processing

JCI will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Data Subjects

Data subjects are determined and controlled by Customer through use of the Services, and may include various categories of Data Subjects as per the Services.

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion.

 


SCHEDULE 3 - STANDARD CONTRACTUAL CLAUSES

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.

Name of the data exporting organisation:

Address:

Tel.:                                                             ; fax:                                           ; e-mail:

Other information needed to identify the organisation:

……………………………………………………………

(the data exporter)

And

Name of the data importing organisation: Johnson Controls entity identified in the Agreement

Address:

Tel.:                                    fax:                                     e-mail: Other information

needed to identify the organisation: Not applicable

(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 

 

Clause 1

Definitions

For the purposes of the Clauses:

  1. ‘personaldata’,‘specialcategoriesofdata’,‘process/processing’,‘controller’,‘processor’,‘datasubject’ 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;

  2. the data exporter’ means the controller who transfers the personal data;

  3. ‘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;

  4. ‘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;

  5. 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;

  6. ‘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.

 

Clause 2

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.

Clause 3

Third-party beneficiary clause

  1. 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(2), and Clauses 9 to 12 as third-party beneficiary.

  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), 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.

  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), 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.

  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.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:


  1. 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;

  2. 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;

  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

  4. 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;

  5. that it will ensure compliance with the security measures;

  6. 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;

  7. to forward any notification received from the data importer or any subprocessor 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;

  8. 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;

  9. 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

  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  1. 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;

  2. 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;

  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

  4. that it will promptly notify the data exporter about:

    1. 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,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

     

  5. 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;

     

  6. 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;

  7. 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;

  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;

  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

 

  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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

  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 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.

     

  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 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.

Clause 7

Mediation and jurisdiction

  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:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.

     

  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.

 

Clause 8

Cooperation with supervisory authorities

 

  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.

     

  2. 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.

     

  3. 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 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

Clause 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 Clause.

 

Clause 11

Subprocessing

  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 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.

     

  2. 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 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 subprocessor shall be limited to its own processing operations under the Clauses.

     

  3. The provisions relating to data protection aspects for subprocessing 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.

     

  4. The data exporter shall keep a list of subprocessing 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.

 

Clause 12

Obligation after the termination of personal data processing services

  1. 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.

     

  2. 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 1.

 

On behalf of the data exporter:

Name (written out in full):

Position:

Address:

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

 

(stamp of organisation)

 

On behalf of the data importer:

Name (written out in full):

Position:

Address:

Other information necessary in order for the contract to be binding (if any):

Signature……………………………………….

 

(stamp of organisation)

 

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

 

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

Data Exporter is the legal entity identified as Customer herein.

Data importer

The data importer is the legal entity identified in the Agreement as providing Services to Customer

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data subjects are determined and controlled by Customer in its sole discretion, and may include various categories of Data Subjects as per the Services.

Categories of data

The personal data transferred concern the following categories of data (please specify):

Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion.

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.

 

DATA EXPORTER

Name:………………………………….…

Authorised Signature ……………………

 

DATA IMPORTER

Name:………………………………….…

Authorised Signature ……………………

 

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):

Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data Processed by JCI as described at https://www.johnsoncontrols.com/-/media/jci/cyber-solutions/documents/johnson-controls-security-practices.pdf or otherwise made reasonably available by data importer.

 

DATA EXPORTER

Name:………………………………….…

Authorised Signature ……………………

 

DATA IMPORTER

Name ……….…

Authorised Signature ………………