SBTS PERSONAL DATA HANDLING ANNEX – ITX SERVICES
This Personal Data Handling Annex (the “PDH Annex”) to the international telecommunications agreement (the “Agreement”) further regulates the handling of Personal Data according to the provisions of the Agreement and to the Data Protection Legislation (the “Data Protection Legislation”), such as the Japanese Act on the Protection of Personal Information (APPI).
The respective provision of Services as defined in the Agreement requires to the Parties to handle certain Personal Data on behalf of the other Party, who may act respectively as a Controller or as a Processor of Personal Data.
As a result, the Parties have entered into this PDH Annex according to the Articles 22 and 15 of the APPI, and agree as follows:
Article 1. Subject matter
This PDH Annex governs the handling of Personal Data by Personal Information Handling Business Operator(s) (PIHBO). Either PIHBO may act as a Processor (when exercising the position of service provider) for and on behalf of the other PIHBO, or as a Controller (when exercising the position of recipient of services). Processor shall handle the Personal Data according to the Controller’s instructions, in connection with the provision of the services defined in the Agreement and with the Data Categories and Principals specified therein.
Article 2. Definitions
Personal Information means any information or identification code, relating to an identified or identifiable natural person (hereinafter “Principal”) in connection of the telecommunication services rendered, which includes phone numbers (sender and recipient) and depending on each individual case, may also include first name, last name, address, personal identification number, location data, IP addresses, contact information, and other relevant Personal Data.
Principal means a specific individual identifiable by Personal Information.
Personal Data means Personal Information constituting a Personal Information database. This Data may refer to Personal Information transferred by electronic means. Moreover, given the nature of the Telecommunications Business, this information becomes part of the importer Party’s electronic filing system, therefore, according to the APPI, such information may fall into the category of “Personal Data”, and this term will be recurringly used in this PDH.
The Personal Information Handling Business Operator (PIHBO) is, as the APPI states, a person managing a Personal Information database; however, excluding any central government organization, and any local government. This term can indistinctively refer to the Controller or the Processor, depending on reception or provision of the services, as well as assignment or reception of Personal Data.
The Controller is the PIHBO that, as far as a specific service is concerned and in accordance with the Agreement, occupies the position of recipient of the service and, consequently, assigns certain Personal Data to the Processor to the extent necessary to receive the contracted service and is responsible for the correct handling of the Personal Data.
The Processor is the PIHBO that, as far as a specific service is concerned and in accordance with the Agreement, occupies the position of service provider and, consequently, receives certain Personal Data from the Controller in order to comply with the service correctly. The Processor only handles Personal Data according to the instructions of the Controller.
The Sub-processor is the contractual partner of the Processor, engaged to carry out specific handling activities on behalf of the Controller.
The Personal Information Protection Commission (‘PPC’) is the competent and principal data protection authority in Japan. Among many tasks, it ensures, supervises, and monitors the appropriate handling of Personal Information, protects individuals’ rights and interests, and formulates and promotes a basic policy.
Effective Date means the date on which the Agreement was validly executed by both Parties.
Terms such as “handling”, “data Controller”, “data processor”, “Personal Data breach” etc. will have the meaning attributed to them under the Data Protection Legislation.
Article 3. Term of the PDH Annex
This PDH Annex shall be effective as ofthe Effective Date and shall continue in full force as long as it will be necessary for billing purposes and/or to render the services under the Agreement, unless otherwise provided by mandatory law or agreed between the Parties.
Any material breach of the provisions of these PDH Annex shall entitle the Parties to terminate it and the Agreement for good cause without notice.
Notwithstanding the foregoing, the Parties expressly agree that the termination of the Agreement for any reason shall result in the automatic resolution of this PDH Annex.
Article 4. Obligations of the Processor
The Processor warrants that it will only handle the Personal Data in such manner as — and to the extent that — this is necessary for the performance of the services under the service agreement, except as it is required to follow instructions of the Controller, or to comply with a legal obligation to which the Processor is subject to, in which case the Processor will notify the Controller of such legal obligations, unless notification is prohibited due to important grounds of public interest.
The purpose and extent of the utilization of Personal Data shall be as explicitly as possible, pursuant to Article 15 APPI. Processor requires Controller consent if the handling required is beyond the necessary scope to achieve the utilization purpose specified. In this case, Processor shall obtain in advance, through Controller if required, the Principal’s consent. Notwithstanding the aforementioned, obtaining the Principal ‘s consent shall not be required, if any of the provisions stated in Article 16.3 APPI apply.
The Processor shall inform the Controller without undue delay about all cases of severe operational interruptions, suspected breaches of data protection obligations or other irregularities in connection with the handling of the Controller’s data.
The Processor shall inform the Controller without undue delay and within a maximum of 48 hours after becoming aware of Personal Data breaches relating to the Controller’s data and assist the Controller in ensuring compliance with the APPI and in the process of informing the Personal Information Protection Commission (PPC). The Processor shall take necessary measures for securing the data and for mitigating any risks for the Principals and shall align these measures with the Controller without undue delay.
The Processor shall inform the Controller without undue delay about current communications between supervisory authorities and the Processor to the extent that the data handling under this PDH Annex is concerned. The Processor shall inform the Controller without undue delay about orders, investigations and other actions by the supervisory authorities.
In this regard, the Processor shall support the Controller in case of data protection checks carried out by supervisory authorities and shall, to the extent the commissioned processing is concerned, implement any orders of supervisory authorities in coordination with the Controller.
The Processor shall provide information to third parties and supervisory authorities only upon prior consultation with the Controller.
The Processor will immediately inform the Controller in writing, including e-mail, if the Processor sees that an instruction of the Controller is in violation of, or against, or causes a breach with this Agreement or applicable Laws and legislation, including — but not limited to — the APPI.
The Processor shall support the Controller at no cost in responding to requests for exercising the Principal’s rights laid down in Articles 27, 28, 29 and 30 APPI (e.g., rights of disclosure, of correction or erasure of data or of utilization cessation) to a reasonable extent and, whenever possible, by appropriate technical and organizational measures. In these cases, the Processor shall pass on to the Controller the request or demand of the Principal without undue delay and no later than the following working day that on which the request of Principal has been received, jointly with the necessary information to solve the request.
The Processor shall strive to keep Personal Data provided by Controller, accurate and up to date, along with its handling records, within the scope necessary to achieve a utilization purpose, according to Article 19 APPI.
If Processor receives an advice for improvement issued by the PPC, Processor will immediately inform the Controller, and shall make its best efforts to comply with the advice, and follow the Controller’s instructions. If Processor does not inform the Controller of such notice, and due to this, the PPC issues an order for improvement, Processor shall be the only Party liable from this point forward, and notwithstanding the foregoing, Processor will inform the Controller about such order of improvement.
The Processor has to exercise, in case of entrusting a whole Or part Of the handling of Personal Data to any other processor (i.e., Sub-processor), necessary and appropriate supervision over the Sub-processor so as to seek the security control of the Personal Data of which the handling has been entrusted.
The Parties acknowledge and agree that engaging carriers is necessary for the performance of the Services. Accordingly, the Controller consents to the Processor to engage further processors (Subprocessors) for carrying out specific handling activities on behalf of the Controller, under the condition that the Processor impose the same data protection obligations as set out in this PDH Annex on those other processors, to the extent applicable to the nature of the services provided by such Sub-processor, by way of a written contract or other legal act according to the Data Protection Legislation. The Processor shall provide the Controller with all necessary information regarding such contracts with Sub-processors upon request, and as far as Confidentiality allows it.
The Processor further undertakes to indemnify the Controller from liability claims asserted by Principals and from administrative penalties imposed upon the Controller if and to the extent that such claims or penalties root in breaches of the Processor’s duties pursuant to this PDH Annex and/or in accordance with the APPI. Until proof to the contrary has been furnished by the Processor, it shall be assumed that Processor is in breach of its duties.
The Processor shall be also liable for fault of its subcontractors to the same extent as it is liable for its own fault.
Article 5. Responsibility and rights of the Controller
Within the scope of the APPI, the Controller shall be responsible for the permissibility of the data handling, including the disclosure of data to Processor, and for safeguarding the Principal’s rights.
The Controller shall specify to the Processor, the purpose of utilizing the Personal Information as explicitly as possible, according to Article 15 APPI. Furthermore, Controller shall authorise Processor to handle Personal Information beyond the necessary scope to achieve the utilization purpose specified. In that case, Controller shall assist Processor in obtaining the Principal ‘s consent, unless it is not required pursuant to Article 16.3 APPI.
In case of data breaches or other security incidents Controller shall make efforts to promptly notify to the PPC of the breach, as well as the Principal, and take necessary action, including measures to minimise any damage and to prevent any recurrence of similar incidents.
The Controller is entitled to give instructions on the nature, scope and procedure for the data handling and on the handling of rights exercised by Principals (e.g., with respect to the correction or erasure of data or the utilization cessation).
The Controller guarantees that it handles the Personal Data used by the Processor to render the services in accordance with all applicable data protection laws, including — but not limited to – the APPI. The Controller shall strive to keep Personal Data provided to Processor, accurate and up to date, within the scope necessary to achieve a utilization purpose, according to Article 19 APPI.
In addition to the instructions contained in this PDH Annex, the Controller is entitled to give new and/or amended instructions to the Processor at any time during the term of the Agreement. Any instructions shall be given in writing or electronically by e-mail, but instructions given orally will be valid and shall be confirmed in writing or electronically by e-mail without delay.
If Controller receives an advice for improvement issued by the PPC, Controller shall make its best efforts to comply with the advice, and will inform Processor of such notice, and will instruct Processor of the actions to be taken.
It is expressly stated for the record that it is possible that the Controller is not the initial Controller of the Personal Data and may therefore, not be directly responsible towards the relevant Principals. In such case, the Controller shall be responsible for fulfilling its obligations towards the actual initial Controller, on behalf of the Controller which handles the Personal Data.
Article 6. Security Measures
The Parties shall take necessary and appropriate action for the security control of Personal Data including preventing the leakage, loss or damage of its handled Personal Data. These measures shall include, but are not limited to:
- Pseudonymize and encrypt Personal Data.
- Prevent unauthorized access to the Personal Data.
- Ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services.
- Restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident.
- Apply a process for regular testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the handling.
- Add password protection on computer systems on which Personal Data is stored and ensuring that only authorized personnel are given details of the password.
- Take reasonable steps to ensure the reliability of employees or other individuals who have access to the Personal Data, as well as exercise necessary and appropriate supervision over these employees; ensure that access to the Personal Data is limited to employees or other individuals who need access to the Personal Data to meet the Customer’s obligations.
- Implement organisational security measures (e.g., appointment of a responsible person (DPO), definition of each person’s responsibility in the company, definition of scope of data handled by each staff member, data handling operation and incident reporting line, definition of responsibilities between divisions, etc), and physical security measures (e.g., area access control, prevention of device theft, prevention of leakage from portable devices, etc).
- Have in place methods for detecting and dealing with breaches of security (including loss, damage or destruction of Personal Data).
- Have a secure method of disposal of unwanted Personal Data including for back-ups, disks, print outs and redundant equipment.
- Parties shall comply at all times with the Data Protection Legislation and shall not perform its obligations under this Agreement or any other agreement or arrangement, or handle Personal Data, in such way to breach any of its applicable obligations under the Data Protection Legislation (including APPI).
In the case of SBTS, as it is stated in clause 10 of this PDH, since it subcontracts all or part of its obligations in relation to transit services to its affiliates, it ensures that these measures shall be fully implemented either by the SBTS itselfor by their affiliates, being in any case guaranteed that the handling of the Personal Data takes place according to the appropriate level of security.
Article 7. Confidentiality
Without prejudice to any existing contractual arrangements between the Parties, the Processor guarantees that it shall treat all Personal Data as strictly confidential. The Processor shall ensure that all persons or parties (employees, agents and other persons involved in the handling of Personal Data) have signed and are bound by an adequate confidentiality agreement and/or are under any other binding obligation of confidentiality.
The Processor is not violating this obligation if and when, such disclosure is mandatory under applicable law or if and when, the Principal has published its Personal Data in public.
Article 8. Audit
In order to confirm compliance with this PDH Annex, the Controller shall be at liberty’ to conduct an audit by assigning an independent third party who shall be obliged to observe confidentiality in this regard. Any such audit will follow the Processor’s reasonable security requirements and will not interfere unreasonably with the Processor’s business activities.
The audit may only be undertaken when there are specific grounds for suspecting the misuse of Personal Data, and no earlier than two weeks after the Controller has provided written notice to the Processor.
The findings in respect of the performed audit will be discussed and evaluated by the Parties and, where applicable, implemented accordingly as the case may be by one of the Parties or jointly by both Parties. Each party shall be responsible for its own audit costs. If it is proven, after an audit, that the Processor has not complied with any of its obligations under this PDH Annex, the Processor shall assume all costs of the audit and shall immediately rectify the breach by assuming the associated costs.
Article 9. Subcontractors
The Parties acknowledge and agree that engaging international carriers is necessary for the performance and quality of the telecommunications Services. Accordingly, the Processor may subcontract part of the services provided that these subcontractors have been chosen diligently and in particular in consideration of their suitability under Data Protection Legislation and of the appropriateness of the technical and organizational measures implemented by the subcontractors pursuant to the requirements of the PPC and included in this PDH, and the Processor exercise the necessary and appropriate supervision under Articles 20 and 21 APPI.
The subcontractor may only access the Controller’s data upon the Processor and its subcontractor having entered into an agreement through which the subcontractor assumes all the obligations set forth in this PDH Annex for the Processor. In such agreement Processor’s and the subcontractor’s responsibilities shall be distinguished clearly from each other.
The Controller may object the engagement of a subcontractor for justified reasons, in particular if a subcontractor has breached its duties and/or the protection of the data is at risk.
In this regard, it is expressly stated that SBTS, when holds the position of Processor, subcontracts part of the transit services entrusted under the Agreement to some affiliates, which shall hold the position of Sub-processors, this is accepted by the Controller, who gives his express consent.
Article 10. International Data Transfers
Either Party, in case of providing Personal Data to a third party in a foreign country (meaning a country or region located outside the territory of Japan) shall in advance obtain a principal’s consent to the effect that he or she approves the provision to a third party in a foreign country, unless the foreign country is prescribed by rules ofthe Personal Information Protection Commission as a foreign country establishing a Personal Information protection system recognized to have equivalent standards to that in Japan in regard to the protection of an individual’s rights and interests.
The Parties acknowledge and agree that engaging international carriers is necessary for the performance and quality of the telecommunication Services. The Controller hereby grants its consent to the Processor to take any measures, to establish and ensure an adequate level of data protection in the transfer of Personal Data to a sub-processing party outside Japan. Accordingly, both Parties shall, when having provided Personal Data to a third party, in a foreign country, and even though there is a Personal Information protection system recognized to have equivalent standards to that in Japan, pursuant to rules of the Personal Information Protection Commission, take necessary action to ensure continuous implementation of the equivalent actions by the third party, and, in response to a Principal’s request, provide information on the necessary actions, to the Principal.
When the transfer occurs between Controller and Processor, neither Party shall have the consideration of third party, therefore and despite being an international data transfer, obtaining the Principal’s consent shall not be required. Nevertheless, both Parties shall ensure that the other warrants a similar level of protection, and takes the necessary and appropriate action for the security control of Personal Data.
When the foreign country at issue is located in the European Union, and therefore the country is subject to the GDPR, the transfers are considered safe and adequate due to the Mutual Adequacy Arrangement between Japan and the EU, which ensures an equivalent level of protection.
Article 11. Erasure of data and return of data storage media
Once the provision of the services rendered by virtue of the Agreement has been completed or upon the Controller’s request, the Processor must destroy any document that have come into its possession, any processing and usage results prepared as well as any data and data sets connected to the contract relationship in line with Data Protection Legislation and in accordance with the instructions of the Controller.
Notwithstanding the foregoing, after termination of the Agreement and/or this PDH Annex, documentation serving to furnish proof of proper data handling in accordance with the service relationship and documentation legally required shall be retained by the Processor in line with the applicable retention periods.
Article 12. Notices
All notices, requests, demands and other communications, which are required or may be given pursuant to the terms of this PDH Annex, shall be in the English language.
Any notification that occurs between the parties will be in writing and shall be delivered personally or in any other way that certifies reception by the party notified at the respective addresses indicated in the heading of this contract.
Either party may request an acknowledgement of receipt for any notice, demand, or communication. Such acknowledgment of receipt shall be effective once such notice, demand or communication is returned signed by the receiving party by means of scanned facsimile copy.
If to SBTS:
Legal Department Contract Administrator
Article 13. Other
This PDH Annex is agreed between the Party’s on each Party’s own behalf, and on behalf of and for the benefit of each Party’s Affiliates. Each Party is entitled to enforce any and all of the provisions of the PDH Annex against the other Party’s Affiliates as though those entities were a Party to this PDH Annex, to the extent such Affiliate handles Personal Data (as defined below). For purposes of the PDH Annex, “Party” also means each of its corresponding Affiliates, unless explicitly provided otherwise.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have caused this document to be executed by their authorized representatives on the date written below.
Representative Director & COO
Carrier has acknowledged and explicity agreed with this PDH Annex as expressly stated in the signed Agreement.