Data Transfer Agreement
Between Trusted Partner Network, LLC, c/o Motion Picture Association, Inc., 15301 Ventura Blvd., Bldg. E, Sherman Oaks, CA 91403 (“TPN”), and Participant, each a “Party”, together “the Parties”,
HAVE AGREED on the following standard contractual 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 personal data.
This Data Transfer Agreement forms part of TPN’s Privacy Policy, and addresses transfers of personal data of Participant located in the European Economic Area (“EEA”), Switzerland, and/or the United Kingdom (“UK”).
With respect to the transfer of personal data outside of the European Economic Area (“EEA”) or Switzerland, TPN and Participant enter into the EU Standard Contractual Clauses (“SCCs”) in Schedule A to the Data Transfer Agreement.
With respect to transfers of personal data from Switzerland, if applicable to the Agreement, all references in the EU SCCs to Member State law, supervisory authority and courts, shall mean the laws, supervisory authority and courts of Switzerland.
With respect to the transfer of personal data outside of the United Kingdom (“UK”), if applicable to the Agreement, TPN and Participant enter into the UK Addendum to the EU SCCs in Schedule B to the Data Transfer Agreement.
NOW THEREFORE, this Data Transfer Agreement replaces any prior agreements, clauses or provisions entered into between the Parties with respect to the cross-border transfer of personal data originating from the EEA, Switzerland and/or the UK.
Schedule A — EU Standard Contractual Clauses
Section I
Clause 1 — Purpose and scope
The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
- (a) The Parties: (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and (ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
- (b) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- (c) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2 — Effect and invariability of the Clauses
- (a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- (b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3 — Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions: (i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7; (ii) Clause 8.5(e) and Clause 8.9(b); (iii) Clause 12(a) and (d); (iv) Clause 13; (v) Clause 15.1(c), (d) and (e); (vi) Clause 16(e); (vii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4 — Interpretation
- (a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- (b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- (c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5 — Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6 — Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 — Docking clause
An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
Section II — Obligations of the Parties
Clause 8 — Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose: (i) where it has obtained the data subject’s prior consent; (ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or (iii) where necessary in order to protect the vital interests of the data subject or of another natural person.
8.2 Transparency
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter: (i) of its identity and contact details; (ii) of the categories of personal data processed; (iii) of the right to obtain a copy of these Clauses; (iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients, the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights.
(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.
8.5 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach.
(e) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved.
8.7 Onward transfers
The data importer shall not disclose the personal data to a third party located outside the European Union unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if the conditions set out in that clause are met.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
(b) The data importer shall make such documentation available to the competent supervisory authority on request.
Clause 9 — Use of sub-processors
Not applicable to controller-to-controller transfers.
Clause 10 — Data subject rights
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request.
(b) The data importer shall keep the data exporter informed about such enquiries and requests received.
Clause 11 — Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
Clause 12 — Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(d) The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
Clause 13 — Supervision
The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses.
Section III — Local Laws and Obligations in Case of Access by Public Authorities
Clause 14 — Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the specific circumstances of the transfer, the laws and practices of the third country of destination, and any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures to be adopted by the data exporter and/or data importer to address the situation.
Clause 15 — Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly if it (i) receives a legally binding request from a public authority for disclosure of personal data transferred pursuant to these Clauses, or (ii) becomes aware of any direct access by public authorities to such personal data.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject, it shall use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible.
(c) Where permissible, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received.
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity.
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible, make the documentation available to the data exporter and the competent supervisory authority.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Section IV — Final Provisions
Clause 16 — Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated.
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where the data exporter has suspended the transfer of personal data pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension; the data importer is in substantial or persistent breach of these Clauses; or the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
(d) Personal data that has been transferred prior to the termination of the contract shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety, and the data importer shall certify the deletion of the data to the data exporter.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred.
Clause 17 — Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Belgium.
Clause 18 — Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Belgium.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Appendix — Annexes I and II
Annex I.A — List of Parties
Data exporter: Participant, the TPN member company transferring personal data to TPN. Contact details, role and signature are recorded on execution of the Data Transfer Agreement.
Data importer: Trusted Partner Network, LLC, c/o Motion Picture Association, Inc., 15301 Ventura Blvd., Bldg. E, Sherman Oaks, CA 91403, USA. Role: controller. Contact: privacy@motionpictures.org.
Annex I.B — Description of Transfer
Categories of data subjects, categories of personal data, frequency of the transfer, nature and purpose(s) of the processing, retention period, and any onward transfers are as described in the Privacy Policy and the Membership Agreement between the Parties.
Annex I.C — Competent Supervisory Authority
The supervisory authority of the EU Member State in which the data exporter is established, in accordance with Clause 13.
Annex II — Technical and Organisational Measures
TPN maintains administrative, technical and physical safeguards designed to protect personal information against accidental, unlawful or unauthorised destruction, loss, alteration, access, disclosure or use, as described in the Privacy Policy.
Schedule B — UK Addendum to the EU SCCs
Where personal data is transferred outside the United Kingdom, the Parties enter into the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner under s119A(1) of the Data Protection Act 2018.
The EU SCCs in Schedule A are incorporated into this Addendum and amended to the extent necessary so that they operate for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer.
References in the EU SCCs to Regulation (EU) 2016/679, Member State law, the competent supervisory authority and the courts shall be read as references to UK Data Protection Laws, the laws of the United Kingdom, the Information Commissioner, and the courts of the United Kingdom respectively.
Questions about this Data Transfer Agreement may be directed to privacy@motionpictures.org.