EU Data Act

Mandatory Data Act contract requirement

Google commentary

Relevant section of the General Service Terms (GSTs) included in the Service Specific Terms (SSTs) for Google Cloud Platform

Article 25 - Contractual terms concerning switching

25(2) Without prejudice to Directive (EU) 2019/770, the contract referred to in paragraph 1 of this Article shall include at least the following:

(a) clauses allowing the customer, upon request, to switch to a data processing service offered by a different provider of data processing services or to port all exportable data and digital assets to an on-premises ICT infrastructure, without undue delay and in any event not after the mandatory maximum transitional period of 30 calendar days, to be initiated after the maximum notice period referred to in point (d), …

As set out in Section 16(a) (Additional Definitions):

• Google’s “Initiation Period” corresponds to the “maximum notice period” referred to in DA Art. 25(2)(d) and is the period during which the customer must initiate the switching process (if the customer has opted for switching);

• Google’s “Migration Period” corresponds to the “mandatory maximum transitional period of 30 calendar days” referred to in DA Art. 25(2)(a), is the period during which the customer must migrate workloads and production data and is initiated if the customer initiates the switching process within the Initiation Period.

Section 16(d) (Customer’s Right to Switch) sets out the customer’s right to switch to another provider of data processing services or to port exportable data and digital assets to an on-premises ICT infrastructure without undue delay during the Initiation Period and the Migration Period (and, therefore, not after the Migration Period).

Section 16(a) (Additional Definitions) of the GSTs

Section 16(d) (Customer’s Right to Switch) of the GSTs

25(2)(b) an obligation of the provider of data processing services to support the customer’s exit strategy relevant to the contracted services, including by providing all relevant information;

Section 16(f) (Google’s Switching Obligations) sets out Google’s commitment to support the customer’s exit strategy for the Google Cloud data processing service the customer is switching or erasing data from, including by providing all relevant information.

Section 16(f) (Google’s Switching Obligations), subsection (vi), of the GSTs

25(2)(d) a maximum notice period for initiation of the switching process, which shall not exceed two months;

Section 16(a) (Additional Definitions) defines the “Initiation Period” as the period of 30 calendar days from the end of the Intake Period (which Section 16(a) defines as the period of 14 calendar days from the date of submission of the customer’s exit request via Google’s prescribed form). The Initiation Period corresponds to the “maximum notice period” referred to in DA Art. 25(2)(d)).

Under Section 16(g) (Switching Initiation and Process), if the customer has opted for switching (rather than data erasure without switching) then the customer is responsible for initiating the switching process during the Initiation Period.

If the customer does not initiate the switching process during the Initiation Period, the customer will be deemed to have withdrawn their exit request, without limiting the customer’s ability to re-start the process by submitting another one.

If the customer does initiate the switching process during the Initiation Period, that process will continue during the Migration Period as described in Section 16(g) (Switching Initiation and Process).

Section 16(a) (Additional Definitions) of the GSTs

Section 16(g) (Switching Initiation and Process), subsections (i) and (ii), of the GSTs

25(2)(f) an exhaustive specification of categories of data specific to the internal functioning of the provider’s data processing service that are to be exempted from the exportable data under point (e) of this paragraph where a risk of breach of trade secrets of the provider exists, provided that such exemptions do not impede or delay the switching process provided for in Article 23;

Under Section 16(g) (Switching Initiation and Process), if the customer has opted for switching then all categories of data and digital assets specific to the internal functioning of Google’s data processing service that are exempted from exportable data due to a risk of breach of Google’s trade secrets, but without the exemption impeding or delaying the switching process, are set out in subsection (ii)(C).

Section 16(g) (Switching Initiation and Process), subsection (ii)(C), of the GSTs

25(2)(h) a clause guaranteeing full erasure of all exportable data and digital assets generated directly by the customer, or relating to the customer directly, after the expiry of the retrieval period referred to in point (g) or after the expiry of an alternative agreed period at a date later than the date of expiry of the retrieval period referred to in point (g), provided that the switching process has been completed successfully;

As set out in Section 16(a) (Additional Definitions), the Data Recovery Period (i.e. the “retrieval period” referred to in DA Art. 25(2)(h)) ends when the customer’s Google Cloud agreement terminates.

Under Section 16(g) (Switching Initiation and Process), if the customer has opted for switching and notifies Google of the customer’s successful completion of the switching process, their Google Cloud agreement will terminate as described in Section 16(g)(ii)(F)(b) and Google will fully erase all exportable data and digital assets generated directly by the customer or relating directly to the customer as described in Section 16(g)(ii)(F)(c).

Because termination and erasure under Section 16(g) (Switching Initiation and Process) are only triggered, where a customer has opted for switching, once the customer has notified Google of the customer’s successful completion of the switching process, termination and erasure cannot occur if the switching process has not been succesfully completed.

Note that, if on the date of termination of the customer’s Google Cloud agreement in relation to the Google Cloud data processing service the customer is switching from, the customer is still using or ordering any other Google Cloud service under the same agreement, Section 16(i) (Customer’s Partial Exit) sets out that full erasure of all exportable data and digital assets under Section 16(g)(ii)(F)(c) will be deferred until the agreement terminates in its entirety.

Section 16(a) (Additional Definitions) of the GSTs

Section 16(g) (Switching Initiation and Process), subsections (ii)(F)(b) and (c), of the GSTs

Section 16(i) (Customer’s Partial Exit) of the GSTs

25(3) The contract referred to in paragraph 1 shall include clauses providing that the customer may notify the provider of data processing services of its decision to perform one or more of the following actions upon termination of the maximum notice period referred to in paragraph 2, point (d):

(a) switch to a different provider of data processing services, in which case the customer shall provide the necessary details of that provider;

(b) switch to an on-premises ICT infrastructure;

(c) erase its exportable data and digital assets.

Section 16(d) (Customer’s Right to Switch) sets out the customer’s right to switch to another provider of data processing services or to port exportable data and digital assets to an on-premises ICT infrastructure.

Section 16(e) (Customer’s Decision) allows the customer to notify Google, by submitting the form at https://support.google.com/cloud/contact/cloud_exit (which allows for inclusion of necessary details of any destination provider of data processing services), of the customer’s decision to switch as described in Section 16(d) (Customer’s Right to Switch) during and/or after the Initiation Period (i.e. the “maximum notice period” referred to in DA Art. 25(3)) and/or of the customer’s decision to erase its exportable data and digital assets after the Initiation Period.

Section 16(d) (Customer’s Right to Switch) of the GSTs

Section 16(e) (Customer’s Decision) of the GSTs

25(5) Without prejudice to paragraph 4, the contract referred to in paragraph 1 shall include clauses providing the customer with the right to extend the transitional period once for a period that the customer considers more appropriate for its own purposes.

Section 16(h) (Extended Migration Period) allows the customer to extend the Migration Period once, if the customer wishes to have a longer Migration Period for any reason; notifies their assigned Google support agent during the then-current Migration Period; and, in their notice, defines an alternative Migration Period.

Note that Section 16(a) (Additional Definitions) defines the “Migration Period” to include any extension by the customer.

Section 16(h) (Extended Migration Period), subsection (ii), of the GSTs

Section 16(a) (Additional Definitions) of the GSTs

26 The provider of data processing services shall provide the customer with:

(a) information on available procedures for switching and porting to the data processing service, including information on available switching and porting methods and formats as well as restrictions and technical limitations which are known to the provider of data processing services;

(b) a reference to an up-to-date online register hosted by the provider of data processing services, with details of all the data structures and data formats as well as the relevant standards and open interoperability specifications, in which the exportable data referred to in Article 25(2), point (e), are available.

Section 16(j) (Required Information) sets out Google’s commitment to provide the customer with the following information:

• information about available procedures for switching and porting to and from the Google Cloud data processing services, including information about available wwitching and porting methods and formats as well as restrictions and technical limitations known to Google, at https://cloud.google.com/terms/data-portability; and

• details of all data structures, data formats, relevant standards and open interoperability specifications available or applicable for the exportable data referred to in Section 16(g)(ii)(B) at https://cloud.google.com/terms/data-portability.

Section 16(j) (Required Information), subsections (i) and (ii), of the GSTs

28(1) Providers of data processing services shall make the following information available on their websites, and keep that information up to date:

(a) the jurisdiction to which the ICT infrastructure deployed for data processing of their individual services is subject;

(b) a general description of the technical, organisational and contractual measures adopted by the provider of data processing services in order to prevent international governmental access to or transfer of non-personal data held in the Union where such access or transfer would create a conflict with Union law or the national law of the relevant Member State.

2. The websites referred to in paragraph 1 shall be listed in contracts for all data processing services offered by providers of data processing services.

Section 16(j) (Required Information) sets out Google’s commitment to provide the customer with the following information and to keep it up to date:

• information about the jurisdictions to which the ICT infrastructure deployed for Google Cloud data processing services is or may be subject at the URLs specified in that section; and

• a general description of the technical, organisational, and contractual measures adopted by Google as provider of the Google Cloud data processing services to prevent international governmental access to or the transfer of non-personal data held in the European Union, where such access or transfer would conflict with EU or EU Member State law, in those parts of the customer’s Google Cloud agreement specified in that section.

Section 16(j) (Required Information), subsections (iii) and (iv), of the GSTs

Article 34 - Interoperability for the purposes of in-parallel use of data processing services