SECTION I – GENERAL INFORMATION
CLAUSE 1. Identification of the Parties
1.1. By this agreement, the Exporter and the Importer (hereinafter, “Parties”), identified below, have agreed to these standard contractual clauses (hereinafter, “Clauses”) approved by the Brazilian National Data Protection Authority – ANPD, to govern the International Data Transfer described in CLAUSE 2, in accordance with the provisions of the Brazilian Legislation.
Exporter (Controller)
Name: name of the Customer being Party to the Agreement, as specified in the Account details
Qualification: The corporate registration number and country of incorporation of the Customer, as specified in the Account details
Main address: Customer’s address, as specified in the Account details
E-mail address, legal representative and contact for the Data Subject: The name, position and contact details provided by the Customer
Importer (Processor):
Name: GetResponse company being Party to the Agreement with the Customer
Main address: as provided in the Agreement
Email address and Contact for the Data Subject: as provided in the Privacy Policy of GetResponse
CLAUSE 2. Object and Scope of application
2.1 These Clauses shall apply to International Transfers of Personal Data between Data Exporter and Data Importer, as described below.
Purpose of the data transfer: provision of the Service by GetResponse to the Customer as set forth in the Agreement
Personal Data transferred: As set forth in the DPA
Category of Data Subjects: As set forth in the DPA
Data Storage period: As set forth in the DPA
Transfer frequency: As set forth in the DPA
Duration of data transfers: As set forth in the DPA
CLAUSE 3. Onward Transfers
3.1. The Importer may carry out an Onward Transfer of Personal Data subject to the International Data Transfer governed by these Clauses, in the cases and according to the conditions described below and the provisions of CLAUSE 18.
Identification of the third-party recipient: As set forth in the DPA.
Purpose of the data transfer: provision of the Service features as set forth in the DPA.
Conditions for the onward transfer: as set forth in the DPA.
CLAUSE 4. Designated Party
4.1. Without prejudice to the duty of mutual assistance and the general obligations of the Parties, the Designated Party below shall be primarily responsible for complying with the following obligations set forth in these Clauses:
a) Responsible for publishing the document provided for in Clause 14:
(X) Exporter ( ) Importer
b) Responsible for responding to requests from data subjects referred to in CLAUSE 15:
(X) Exporter ( ) Importer
c) Responsible for reporting the security incident provided for in Clause 16:
(X) Exporter ( ) Importer
4.2. For the purposes of these Clauses, if the Designated Party pursuant to item 4.1. is the Processor, the Controller remains responsible for:
a) the compliance with the obligations provided in CLAUSES 14, 15 and 16 and other provisions established in the Brazilian National Legislation, especially in case of omission or non-compliance with the obligations by the Designated Party;
b) complying with ANPD determinations; and
c) the guarantee of the Data Subjects’ rights and the repairing of the damage caused.
SECTION II – MANDATORY CLAUSES
CLAUSE 5. Purpose
5.1 These Clauses are presented as a mechanism which enables a safe international flow of personal data, establish minimum guarantees and valid conditions for carrying out an International Data Transfer and aim at guaranteeing the adoption of adequate safeguards for compliance with the principles, the Data Subject’s rights and the data protection regime provided in the Brazilian National Legislation.
CLAUSE 6. Definitions
6.1. For the purposes of these Clauses, the definitions of article 5 of the LGPD, of the Regulation on the International Transfer of Personal Data and of other normative acts issued by the ANPD shall be considered. The Parties further agree to consider the terms and their respective meanings, as set out below:
a) Processing agents: the controller and the processor;
b) ANPD: Brazilian National Data Protection Authority;
c) Clauses: the standard contractual clauses approved by the ANPD, which are part of SECTIONS I, II and III;
d) Related Contract: contractual instrument signed between the Parties or, at least, between one of them and a third party, including a Third Party Controller, which has a common purpose, link or dependency relationship with the contract that governs the International Data Transfer;
e) Controller: Party or third party (“Third Controller”) responsible for decisions regarding the processing of Personal Data;
f) Personal Data: information related to an identified or identifiable natural person;
g) Sensitive Personal Data: personal data on racial or ethnic origin, religious belief, political opinion, affiliation to trade unions or to a religious, philosophical or political organization, data regarding health or sexual life, genetic or biometric data, whenever related to a natural person;
h) deletion: exclusion of data or dataset from a database, regardless of the procedure used;
i) Exporter: processing agent, located in the national territory or in a foreign country, who transfers personal data to the Importer;
j) Importer: processing agent, located in a foreign country, who receives personal data from the Exporter;
k) Brazilian National Legislation: set of Brazilian constitutional, legal and regulatory provisions regarding the protection of Personal Data,including the LGPD, the International Data Transfer Regulation and other normative acts issued by the ANPD;
l) Arbitration Law: Law No. 9,307, of September 23, 1996;
m) LGPD: General Data Protection Law (Brazilian Federal Law No. 13,709, of August 14, 2018);
n) Security Measures: technical and administrative measures able to protect Personal Data from unauthorized access and from accidental or unlawful events of destruction, loss, alteration, communication or dissemination;
o) Research Body: body or entity of the government bodies or associated entities or a non-profit private legal entity legally established under Brazilian laws, having their headquarter and jurisdiction in the Brazilian territory, which includes basic or applied research of historical, scientific, technological or statistical nature in its institutional mission or in its corporate or statutory purposes;
p) Processor: Party or third party, including a Sub-processor, which processes Personal Data on behalf of the Controller;
q) Designated Party: Party or a Third Party Controller, under the terms of CLAUSE 4, designated to fulfill specific obligations regarding transparency, Data Subjects’ rights and notifying security incidents;
r) Parties: Exporter and Importer;
s) Access Request: request for mandatory compliance, by force of law, regulation or determination of public authority, to grant access to the Personal Data subject to the International Data Transfer governed by these Clauses;
t) Sub-processor: processing agent hired by the Importer, with no link with the Exporter, to process Personal Data after an International Data Transfer;
u) Third Party Controller: Personal Data Controller who authorizes and provides written instructions for the carrying out of the International Data Transfer between Processors governed by these Clauses, on his behalf, pursuant to Clause 4 (“Option B”);v) Data Subject: natural person to whom the Personal Data which are subject to the International Data Transfer governed by these Clauses
relate;
w) Transfer: processing modality through which a processing agent transmits, shares or provides access to Personal Data to another processing agent;
x) International Data Transfer: transfer of Personal Data to a foreign country or to an international organization which Brazil is a member of; and
y) Onward Transfer: transfer of Personal Data, within the same country or to another country, by an Importer to a third party, including a Sub- processor, provided that it does not constitute an Access Request.
CLAUSE 7. Applicable legislation and ANPD supervision
7.1. The International Data Transfer subject to these Clauses shall subject to the Brazilian National Legislation and to the supervision of the ANPD, including the power to apply preventive measures and administrative sanctions to both Parties, as appropriate, as well as the power to limit, suspend or prohibit the international transfers arising from this agreement or a Related Agreement.
CLAUSE 8. Interpretation
8.1. Any application of these Clauses shall occur in accordance with the following terms:
a) these Clauses shall always be interpreted more favorably to the Data Subject and in accordance with the provisions of the Brazilian National Legislation;
b) in case of doubt about the meaning of any term in these Clauses, the.meaning which is most in line with the Brazilian National Legislation shall apply;
c) no item in these Clauses, including a Related Agreement and the provisions set forth in SECTION IV, shall be interpreted as limiting orexcluding the liability of any of the Parties in relation to obligations set forth in the Brazilian National Legislation; and
d) provisions of SECTIONS I and II shall prevail in case of conflict of interpretation with additional clauses and other provisions set forth in SECTIONS III and IV of this agreement or in Related Agreements.
CLAUSE 9. Docking Clause
9.1. By mutual agreement between the Parties, it shall be possible for a processing agent to adhere to these Clauses, either as a Data Exporter or as a Data Importer, by completing and signing a written document, which shall form part of this contract.
9.2. On and after the Accession Date, the adhering party shall have the same rights and obligations as the originating Parties, depending on the assumed role of a Data Exporter or a Data Importer, and according to the corresponding category of processing agent.
CLAUSE 10. General obligations of the Parties
10.1. The Parties undertake to adopt and, when necessary, demonstrate the implementation of effective measures capable of demonstrating observance of and compliance with the provisions of these Clauses and the Brazilian National Legislation, as well as with the effectiveness of such measures and, in particular:
a) use the Personal Data only for the specific purposes described in CLAUSE 2, with no possibility of subsequent processing incompatible with such purposes, subject to the limitations, guarantees and safeguards provided for in these Clauses;
b) guarantee the compatibility of the processing with the purposes informed to the Data Subject, according to the processing activity context;
c) limit the processing activity to the minimum required for the accomplishment of its purposes, encompassing pertinent, proportional and non-excessive data in relation to the Personal Data processing purposes;
d) guarantee to the Data Subjects, subject to the provisions of CLAUSE 4:(d.1.) clear, accurate and easily accessible information on the processing activities and the respective processing agents, complying with trade and industrial secrets;
(d.2.) facilitated and free of charge consultation on the form and duration of the processing, as well as on the integrity of their Personal Data; and
(d.3.) accuracy, clarity, relevance and updating of the Personal Data, according to the necessity and for compliance with the purpose of their processing;
e) use appropriate technical and administrative measures to prevent the occurrence of damage due to the processing of Personal Data and able to protect the Personal Data from unauthorized access and accidental or unlawful situations of destruction, loss, alteration, communication or dissemination;
f) not to process Personal Data for unlawful or abusive discriminatory purposes;
g) ensure that any person acting under their authority, including sub- processors or any agent who collaborates with them, whether for reward or free of charge, only processes data in compliance with their instructions and with the provisions of these Clauses;
h) keep record of the Personal Data processing operations object of the International Data Transfer governed by these Clauses, and submit the relevant documentation to the ANPD, when requested.
CLAUSE 11. Sensitive personal data
11.1. In case the international transfer of personal data involves sensitive data, the Parties shall apply additional safeguards, including specific Security Measures which are proportional to the risks of the processing activity, to the specific nature of the data and to the interests, rights and guarantees to be protected, as described in SECTION III.
CLAUSE 12. Data on children and adolescents
12.1. In case the International Transfer governed by these Clauses involves Personal Data concerning children and adolescents, the Parties shall implement measures to ensure that the processing is carried out in their best interest, under the terms of the Brazilian National Legislation and relevant instruments of international law.
CLAUSE 13. Legal use of data
13.1. The Exporter guarantees that the Personal Data have been collected, processed and transferred to the Importer in accordance with the Brazilian National Legislation.
CLAUSE 14. Transparency
14.1. The Designated Party shall publish, on its website, a document containing easily accessible information written in simple, clear and accurate language on the conduction of the International Data Transfer, including at least information on:
a) the form, duration and specific purpose of the international transfer;
b) the destination country of the transferred data;
c) the Designated Party’s identification and contact details;
d) the shared use of data by the Parties and its purpose;
e) the responsibilities of the agents who shall conduct the processing;
f) the Data Subject’s rights and the means for exercising them, including an easily accessible channel made available to respond to their requests, and the right to file a petition against the Exporter and the Importer before the ANPD; and
g) Onward Transfers, including those relating to recipients and to the purpose of such transfer.
14.2. The document referred to in item 14.1. shall be made available on a specific website page or integrated, in a distinguishable and easily accessible format, to the Privacy Policy or equivalent document.
14.3. Upon request, the Parties shall make a free of charge copy of these Clauses available to the Data Subject, complying with trade and industrial secrets.14.4. All information made available to Data Subjects, under the terms of these Clauses, shall be written in Portuguese.
CLAUSE 15. Data subject’s rights
15.1. The Data subject shall have the right to obtain from the Designated Party, as regards the Personal Data subject to the International Data Transfer governed by these Clauses, at any time, and upon request, under the terms of the Brazilian National Legislation:
a) confirmation of the existence of processing;
b) access to data;
c) correction of incomplete, inaccurate or outdated data;
d) anonymization, blocking or deletion of data which are unnecessary, excessive or processed in noncompliance with these Clauses and with the provisions of the National Legislation;
e) portability of data to another service or product provider, upon express request, in accordance with ANPD regulations, complying with trade and industrial secrets;
f) deletion of Personal Data processed under the Data Subject’s consent, except for the events provided in CLAUSE 20;
g) information on public and private organizations with which the Parties have shared data;
h) information on the possibility of not providing consent and on the consequences of the denial;
i) revocation of consent through a free of charge and facilitated procedure, remaining ratified the processing activities carried out before the request for elimination;
j) review of decisions made solely based on automated processing of Personal Data which affects the Data Subject’s interests; and
k) information on the criteria and procedures adopted for the automated decision.
15.2. Data subject may oppose to the processing based on one of the events of waiver of consent, in case of noncompliance with the provisions of these Clauses or Brazilian National Legislation.
15.3. The deadline for responding the requests provided in this Clause and in item 14.3. is 15 (fifteen) calendar days, except for events in which a different period is established in specific regulations of the ANPD.
15.4. In case the Data Subject’s request is directed to the Party not designated as responsible for the obligations set forth in this Clause or in item 14.3., the referred Party shall:
a) inform the Data Subject of the service channel made available by the Designated Party; or
b) forward the request to the Designated Party as early as possible, to enable the response within the period provided in item 15.3.
15.5. The Parties shall immediately inform the Data Processing Agents with whom they have shared data with the correction, deletion, anonymization or blocking of the data, for them to follow the same procedure.
15.6. The Parties shall promote mutual assistance to respond to the Data Subjects’ requests.
CLAUSE 16. Security Incident Reporting
16.1. In the event of a security incident which may entail significant risk or damage to the Data Subjects, the Designated Party shall notify both the ANPD and the Data Subjects, as provided in Brazilian National Legislation.
16.2. The notification provided in item 16.1. shall be sent as soon as reasonably feasible, as defined in specific regulations of the ANPD, and shall mention, complying with the regulations and guidelines issued by the ANPD, at least:
a) the description of the nature of the affected Personal Data;
b) information on the Data Subjects involved;
c) indication of the technical and security measures taken for data protection, complying with trade and industrial secrets;
d) the risks related to the incident;
e) the reasons for the delay, in case communication has not been immediate; and
f) the measures which have been or shall be implemented to reverse or mitigate the effects of the damage.
16.3. The Importer shall keep a record of security incidents under the terms of the Brazilian National Legislation.
CLAUSE 17. Liability and damages compensation
17.1. The Party which, when performing Personal Data processing activities, causes patrimonial, moral, individual or collective damage, for violating the provisions of these Clauses and of the Brazilian National Legislation, shall compensate for it.
17.2. Data Subject may claim for compensation for damage caused by any of the Parties as a result of a breach of these Clauses.17.3. The defense of Data Subjects’ interests and rights may be claimed in court, individually or collectively, in accordance with the provisions in relevant legislation regarding the instruments of individual and collective protection.
17.4. The Party acting as Operator shall be jointly and severally liable for damages caused by the processing activities when it fails to comply with these Clauses or when it has not followed the lawful instructions of the Controller, except for the provisions in item 17.6.
17.5. Controllers directly involved in the processing activities which resulted in damages to the Data Subject shall be jointly and severally liable for these damages, except for the provisions in item 17.6.
17.6. Parties shall not be held liable if they have proven that:
a) they have not carried out the processing of Personal Data attributed to them;
b) although they did carry out the processing of Personal Data attributed to them, there was no violation of these Clauses; or
c) the damage results from the sole fault of the Data Subject or of a third party which is not a recipient of the Onward Transfer or not subcontracted by the Parties.
17.7. Under the terms of the National Legislation, the judge may reverse the burden of proof in favor of the Data Subject whenever, in the judge’s opinion, the allegation is credible, there is an economic disadvantage for the purposes of producing evidence or when the production of evidence by the Data Subject is overly burdensome.
17.8. Judicial proceedings for compensation for collective damages which intend to establish liability under the terms of this Clause may be collectively conducted in court, with due regard for the provisions in relevant legislation.
17.9. The Party which pays compensation for the damage to the Data Subject shall be entitled to claim back from the other liable parties to the extent of their participation in the damaging event.
CLAUSE 18. Safeguards for Onward Transfer
18.1. The Importer shall only carry out Onward Transfers of Personal Data subject to the International Data Transfer governed by these Clauses if expressly authorized, in accordance with the terms and conditions described in CLAUSE 3.
18.2. In any case, the Importer:
a) shall ensure that the purpose of the Onward Transfer is compatible with the specific purposes described in CLAUSE 2;
b) shall guarantee, by means of a written contractual instrument, that the safeguards provided in these Clauses shall be ensured by the third party recipient of the Onward Transfer; and
c) for the purposes of these Clauses, and regarding the Personal Data transferred, shall be considered responsible for any eventual irregularities committed by the third party recipient of the Onward Transfer.
18.3. The Onward Transfer shall also be carried out based on another valid modality of International Data Transfer provided in National Legislation.
CLAUSE 19. Access Request Notification
19.1. The Importer shall notify the Exporter and the Data Subject of any Access Request related to the Personal Data transferred pursuant to these Clauses unless the law of the country where the data is processed prohibits them to do so.
19.2. The Importer shall implement the appropriate legal measures, including legal actions, to protect the rights of the Data Subjects whenever there is adequate legal basis to question the legality of the Access Request and, if applicable, the prohibition of issuing the notification referred to in item 19.1.
19.3. To comply with both the ANPD’s and the Exporter’s requests, the Importer shall keep a record of Access Requests, including date, requester, purpose of the request, type of data requested, number of requests received and legal measures implemented.
CLAUSE 20. Ending of processing and deletion of data
20.1. Parties shall delete the personal data subject to the International Data Transfer governed by these Clauses after the ending of their processing, being their storage authorized only for the following purposes:
a) compliance with a legal or regulatory obligation by the Controller;
b) study by a Research Body, guaranteeing, whenever possible, the anonymization of personal data;
c) transfer to a third party, upon compliance with requirements set forth in these Clauses and in the Brazilian National Legislation; and
d) exclusive use of the Controller, being the access by a third party prohibited, and provided data have been anonymized.
20.2. For the purposes of this Clause, processing of personal data shall cease when:
a) the purpose set forth in these Clauses has been achieved;
b) Personal Data are no longer necessary or pertinent to attain the intended specific purpose set forth in these Clauses;
c) the agreed data processing period has expired, even after the termination of this contract;
d) Data Subject’s request is met; and
e) demanded by the ANPD.
CLAUSE 21. Data processing security
21.1. Parties shall implement Security Measures which guarantee sufficient protection of confidentiality, integrity and availability of the Personal Data subject to the International Data Transfer governed by these Clauses, even after its conclusion.
21.2. Parties shall inform, in SECTION III, the Security Measures implemented, considering the nature of the processed information, the specific characteristics and the purpose of the processing, the technology current state and the probability and severity of the risks to the Data Subjects’ rights, especially in the case of sensitive personal data.
21.3. Parties shall make the necessary efforts to implement periodic evaluation and review measures to maintain the appropriate level of data security.
CLAUSE 22. Legislation of country of destination
22.1. Parties declare that they have assessed the legislation of the country of destination and have not identified laws or administrative practices which prevent the Importer from complying with the obligations under these Clauses.
22.2. In the event of a regulatory change which alters this situation, the Importer shall immediately notify the Exporter to assess the continuity of the contract.
CLAUSE 23. Non-compliance with the Clauses by the Importer
23.1. In the event of a breach in the safeguards and guarantees provided in these Clauses or being the Importer unable to comply with any of them, the Exporter shall be immediately notified, subject to the provisions in item 19.1.
23.2. Upon receipt of the communication referred to in item 23.1 or upon verification of non-compliance with these Clauses by the Importer, the Exporter shall implement the relevant measures to ensure the protection of the Data Subjects’ rights and the compliance of the International Data Transfer with the National Legislation and these Clauses, and may, as appropriate:
a) suspend the International Data Transfer;
b) request the return of Personal Data, their transfer to a third party, or their deletion; and
c) terminate the contract.
CLAUSE 24. Choice of forum and jurisdiction
24.1. Brazilian legislation applies to these Clauses and any controversy between the Parties arising from these Clauses shall be resolved before the competent courts in Brazil, observing, if applicable, the forum chosen by the Parties in Section IV.
24.2. Data Subjects may file lawsuits against the Exporter or the Importer, as they choose, before the competent courts in Brazil, including those in their place of habitual residence.
24.3. By mutual agreement, Parties may use arbitration to resolve conflicts arising from these Clauses, provided that the procedure is carried out in Brazil and in accordance with the provisions of the Arbitration Law.
SECTION III – SECURITY MEASURES
The technical and organizational measures set out in the DPA.