Data Processing Agreement

1. Definitions and Interpretation

• 1.1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

• 1.1.1. “Agreement” means this Data Processing Agreement and all Schedules;

• 1.1.2. “Controller Personal Data” means any Personal Data Processed by a Subprocessor on behalf of the Data Controller pursuant to or in connection with the Principal Agreement;

• 1.1.3. “Contracted Processor” means a Subprocessor;

• 1.1.4. “Data Protection Laws” means for the Data Controller Operational Circular No.11 (OC11) and for the Data Processor the principles set out in OC11, EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

• 1.1.5. “EEA” means the European Economic Area;

• 1.1.6. “EU Data Protection Laws” means the General Data Protection Regulation (EU 2016/679), and laws implementing or supplementing the GDPR;

• 1.1.7. “GDPR” means EU General Data Protection Regulation 2016/679;

• 1.1.8. “Data Transfer” means:

  • 1.1.8.1. a transfer of Controller Personal Data from the Controller to a Subprocessor; or

  • 1.1.8.2. an onward transfer of Controller Personal Data from a Subprocessor, or between two establishments of a Subprocessor

• 1.1.9. “Services” means the services that the Processor provides to the Controller as defined in the Principal Agreement.

• 1.1.10. “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Controller in connection with the Agreement.

• 1.2. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in OC11 and the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Controller Personal Data

• 2.1. Processor shall:

• 2.1.1. comply with all applicable Data Protection Laws in the Processing of Controller Personal Data; and

• 2.1.2. Not process Controller Personal Data other than on the relevant Controller’s documented instructions.

• 2.2. The Controller instructs the Processor to process Controller Personal Data.

3. Processor Personnel

• 3.1. Processor shall take reasonable steps to ensure the reliability of any of its employee, agent or contractor and of any employee, agent or contractor of any Subprocessor who may have access to the Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Subprocessor, ensuring that all such individuals are informed of the confidential nature of the Personal Data, have received appropriate training regarding their responsibilities and have signed a written confidentiality agreement which is no less protective of Personal Data than this Agreement.½

4. Security

• 4.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Controller Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

• 4.2. In assessing the appropriate level of security, the Processor shall take account in particular of the risks that are presented by Processing.

5. Subprocessing

• 5.1. Processor shall not appoint (or disclose any Controller Personal Data to) any Subprocessor unless required or authorized by the Controller.

• 5.2. “The Processor shall remain fully responsible to the Controller for the performance of its subprocessors’ obligations . The Processor shall notify the Controller of any failure by the sub-processors or the Subprocessors to fulfil their contractual obligations”.

6. Data Subject Rights

• 6.1. Taking into account the nature of the Processing, Processor shall assist the Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller obligations, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

• 6.2. Processor shall:

• 6.2.1. promptly notify the Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and

• 6.2.2. ensure that it does not respond to that request except on the documented instructions of the Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform the Controller of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

• 7.1. The Data Processor shall notify the Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data, providing the Data Controller with all the necessary information to allow the Controller to meet any obligations under OC11. The Processor shall at least include the following information when notifying the Controller:-the nature of the Personal Data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned; the likely consequences of the Data breach; the measures taken or proposed to be taken to address the Personal Data breach.

• 7.2. Processor shall co-operate with the Controller and take appropriate steps to assist the Controller in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

• 8.1. Processor shall provide reasonable assistance to the Controller with any data protection impact assessments, which Controller considers to be required by OC11, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Subprocessors.

9. Deletion or return of Controller Personal Data

• 9.1. Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Controller Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of said data.

• 9.2. Processor shall provide written certification to the Controller that it has fully complied with this section 9 within 10 business days of the Cessation Date.

10. Audit rights

• 10.1. Subject to this section 10, Processor shall make available to the Controller on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Controller or an auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Subprocessors.

• 10.2. Information and audit rights of the Controller only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

• 11.1. The Processor shall not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Controller. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

• 11.2. The same obligations will apply to the Subprocessors as well as to any sub-processor engaged by the Processor.

12. General Terms

• 12.1. Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information””) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

  1. disclosure is required by law;
  2. the relevant information is already in the public domain.

• 12.2. Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.