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Legal

Old Standard Contractual Clauses

Last Updated: September 27, 2021

The Old Standard Contractual Clauses (the Old SCCs) below are a template and are provided solely for convenience to allow current and prospective customers the ability to view these terms prior to execution. The template below is not legally binding on you or ActiveCampaign.

The Old SCCs are between a Controller and a Processor and approved under the repealed Data Protection Directive. To enter into a binding version of the Old SCCs, you must first execute a DPA with ActiveCampaign (which is also available for execution in the ActiveCampaign platform), as the Old SCCs modify the terms of the DPA. You must also execute the Old SCCs using the link provided in the settings of your ActiveCampaign account. 

Please note: not all customers who sign a DPA will need to sign the Old SCCs. ActiveCampaign cannot make that determination for you, so if you are unsure if you require the Old SCCs, your legal advisors will be able to assist you in making that determination. In addition, if you require the execution of the standard contractual clauses approved under the GDPR (the New SCCs), a link to the template New SCCs is provided here, https://www.activecampaign.com/legal/newscc, and an executable version is available in the settings of your ActiveCampaign account.

If you are an ActiveCampaign reseller, affiliate, or agency partner, please contact ActiveCampaign support for a partner specific agreement.

SCHEDULE 2 to the ActiveCampaign Data Processing Addendum
Standard Contractual Clauses (controller to processor)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the data exporter and the data importer identified in the signature pages to these clauses, 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 Schedule 1.

Clause 1

Definitions

For the purposes of the Clauses: 

(a)     'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b)     'the data exporter' means the controller who transfers the personal data;

(c)     'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on 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;

(d)      '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;

(e)     'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)      'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

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: 

(a)     that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b)     that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

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

(d)     that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e)     that it will ensure compliance with the security measures;

(f)     that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g)     to forward any notification received from the data importer or any 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;

(h)     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;

(i)     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

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

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a)     to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b)     that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

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

(d)     that it will promptly notify the data exporter about:

  1. (i)       any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
  2. (ii)       any accidental or unauthorised access, and
  3. (iii)       any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e)     to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f)     at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g)     to make available to the data subject upon request a copy of the Clauses, or any existing contract for 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;

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

(i)     that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j)     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. (a)       to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. (b)       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.

IN WITNESS WHEREOF, each of the undersigned companies has caused this agreement to be signed and delivered by its duly authorized representative.


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: ActiveCampaign, LLC

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.

Please see details set forth in Schedule 1 to the Addendum to which the Clauses are appended


DATA EXPORTER

Name: ____________________

Authorised Signature ……………………


DATA IMPORTER: ActiveCampaign, LLC

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):

In addition to the security measures set forth in Section 6 of the Addendum, the data importer will implement technical and organizational security measures intended to secure the processing of Client Personal Information and to preserve the security, availability, integrity and confidentiality of Personal Information (“Security Measures”), in accordance with its obligations under Applicable Law including, as applicable:

  1. (a)       the pseudonymization and encryption of Personal Information;
  2. (b)       the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; 
  3. (c)       the ability to restore the availability and access to Personal Information in a timely manner in the event of a physical or technical incident; and 
  4. (d)       a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing Personal Information.


DATA EXPORTER

Name: ____________________

Authorised Signature ……………………


DATA IMPORTER: ActiveCampaign, LLC 

Name: ____________________

Authorised Signature ……………………

Appendix 3 to the Standard Contractual Clauses

Where the Clauses apply pursuant to Section 5(a) of the Addendum, then this Appendix 3 forms part of the Clauses and sets out the parties' interpretations of their respective obligations under specific provisions within the Clauses, as identified below. Where a party complies with the interpretations set out in this Appendix 3, that party shall be deemed by the other party to have complied with its commitments under the Clauses.

Nothing in the interpretations below is intended to vary or modify the Clauses or conflict with either party's rights or responsibilities under the Clauses and, in the event of any conflict between the interpretations below and the Clauses, the Clauses shall prevail to the extent of such conflict.  Notwithstanding this, the parties expressly agree that any claims brought under the Clauses shall be exclusively governed by the limitations on liability set out in the Agreement. For the avoidance of any doubt, in no event shall any party limit its liability with respect to any data subject rights under the Clauses.

Clauses 4(h) and 8: Obligations of the data exporter regarding non-disclosure requirements

The data exporter agrees that the terms of the Clauses, as executed, constitute the data importer's confidential information and may not be disclosed by the data exporter to any third party without the data importer's prior agreement (other than to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8, with the exception of any confidential or commercial information as consistent with the parties’ respective obligations in Clauses 4(h) and 5(g), respectively).

Clause 5(a): Suspension of data transfers and termination

  1. The parties acknowledge that the data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.
  2. The parties acknowledge that if the data importer cannot provide such compliance for whatever reason, 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.
  3. If the data exporter intends to suspend the transfer of personal data and/or terminate the contract, it shall endeavour to provide notice to the data importer and provide the data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).
  4. If after the Cure Period, the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately. The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.

Clause 5(b): Supplementary measures

  1. The parties acknowledge that it is the responsibility of the data exporter to verify whether the safeguards employed by the data importer are sufficient to meet its obligations under Applicable Law, including with respect to the provision of adequate safeguards necessary to secure the transfer of personal data through the Clauses. 
  2. The data importer has not, to its knowledge, received any requests for the personal data of EU residents processed within the provision of the Services, under Section 702 of the U.S. Foreign Intelligence Surveillance Act. 
  3. The parties acknowledge that personal data transmitted between the data exporter and the data importer within the course of the Services is encrypted in transit. 

Clauses 5(f): Audits

The parties agree that the audit described in Clause 5(f) will be performed in accordance with Section 7 of the Addendum. Should a supervisory authority finally determine that such mechanism is not legally sufficient under the Clauses:

  1. The parties agree that the audit conducted pursuant to Clause 5(f) will be: (i) scoped to only matters not reasonably covered by the Audit Information, as provided by the data importer to the data exporter under Section 7 of the Addendum, unless a supervisory authority determines that the scope of such audit is not legally sufficient to enable the data importer to comply with its obligations under Clause 5(f); and (ii) conducted no more than annually unless (a) the data exporter reasonably believes the data importer is failing to fulfil its obligations under the Clauses or (b) there has been a confirmed personal data breach, in which case the data exporter may perform an audit at the data exporter’s request provided that it makes such request known to the data importer in writing within 30 days after being notified of the personal data breach or the occurrence of any facts giving rise to the belief that the data importer is failing to fulfil its obligations under the Clauses.
  2. The data exporter will provide the data importer with reasonable advance written notice of its intent to conduct an audit and to cooperate reasonably with data importer in scheduling such audit. The data exporter will conduct such audit during the data importer’s standard business hours and in such a manner to minimise any business disruption to the data importer. To request an audit, the data exporter must submit a detailed audit plan at least 90 days in advance of the proposed audit date describing the proposed scope, duration, and start date of the audit. 
  3. Any audit will be conducted at the data exporter's expense and the data importer may charge reasonable day rates for any support that it provides to the data exporter in connection with such audit (such rates to be agreed with the data importer in advance or, if no such agreement, then at the data importer's normal professional day rates). 
  4. Any auditor, whether internal to the data exporter or a third party appointed by the data exporter, must execute a non-disclosure agreement in a form reasonably acceptable to the data importer prior to accessing the data importer's facilities or otherwise receiving confidential information from the data importer in connection with such audit.

Clause 5(j): Disclosure of subprocessor agreements

  1. The parties agree that the copies of the subprocessor agreements that must be provided by the data importer to the data exporter pursuant to Clause 5(j) may have all confidential or commercial information, or provisions unrelated to the Clauses, removed by the data importer beforehand and that such copies will be provided by the data importer, in a manner to be determined in its discretion, only upon request by the data exporter.  
  2. The parties agree that all copies of the subprocessor agreements, and information related thereto, that the data importer provides to the data exporter will constitute the data importer's confidential information and may not be disclosed by the data exporter to any third party without the data importer's prior agreement.

Clause 6: Liability 

Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement in effect as of the date of execution of the Clauses or other written or electronic agreement for the data exporter’s use and purchase of the data importer’s products and services. In no event shall any party limit its liability with respect to any data subject rights under the Clauses. 

Clauses 5(h) and 11: Onward subprocessing 

  1. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled “FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC” the data exporter may provide a general consent to onward subprocessing by the data importer. 
  2. Accordingly, the data exporter provides a general consent to the data importer, for the purposes of Clauses 5(h) and 11, to engage onward subprocessors. Such consent is conditional on the data importer’s compliance with the requirements set out below, which collectively ensure that the onward subprocessor will provide adequate protection for the personal data that it processes:

    3. (a)     any onward subprocessor must agree in writing: (i) to only process personal data in the European Economic Area or another country that the European Commission has formally declared to have an “adequate” level of protection in accordance with the requirements of EU Data Protection Law; or (ii) to process personal data on terms equivalent to the Clauses, pursuant to a Binding Corporate Rules approval granted by competent European data protection authorities and whose scope extends to transfers of personal data from the territories in which the data exporter is established, or subject to a mechanism providing adequate safeguards for the transfer of personal data in accordance with applicable law, including Article 46 of the GDPR; and 

    (b)      the data importer must restrict the onward subprocessor’s access to personal data only to what is strictly necessary to perform its subcontracted data processing services to the data importer (which shall be consistent with the instructions issued to the data importer by the data exporter) and the data importer will prohibit the onward subprocessor from processing the personal data for any other purpose.

  3. For the avoidance of any doubt, the data exporter acknowledges and expressly agrees to the data importer’s engagement of subprocessors in accordance with Section 4 of the Addendum.

    4. Clause 12: Obligation after the termination of personal data processing services 

    1. The data importer will fulfil its obligations pursuant to Clause 12(1) by complying with Section 9 of the Addendum. 
    2. Certification of deletion of personal data will be provided upon the data exporter’s written request. 


    DATA EXPORTER

    Name: ____________________

    Authorised Signature ……………………


    DATA IMPORTER: ActiveCampaign, LLC

    Name: ____________________

    Authorised Signature ……………………