Last updated 31st of January 2019
The terms used in this Agreement shall have the meanings set forth in this Addendum. Terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement.
In this Agreement, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
"Authorised Sub-processors" means (a) those Sub-processors set out in Annex 3 (Authorised Transfers of Controller Personal Data); and (b) any additional Sub-processors consented to in writing by Controller in accordance with Sub-processing section.
"Sub-processor" means any Data Processor (including any third party) appointed by the Processor to process Controller Personal Data on behalf of the Controller.
"Process/Processing/Processed", "Data Controller", "Data Processor", "Data Subject", "Personal Data", "Special Categories of Personal Data" and any further definition not included under this Agreement or the Principal Agreement shall have the same meaning as in EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR").
“Data Protection Laws” means EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") as well as any local data protection laws.
“Erasure" means the removal or destruction of Personal Data such that it cannot be recovered or reconstructed.
"EEA" means the European Economic Area.
"Third country" means any country outside EU/EEA, except where that country is the subject of a valid adequacy decision by the European Commission on the protection of Personal Data in Third Countries.
"Controller Personal Data" means the data described in Annex 1 and any other Personal Data processed by Processor on behalf of the Controller pursuant to or in connection with the Principal Agreement.
"Personal Data Breach" means a breach of leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Controller Personal Data transmitted, stored or otherwise processed.
"Services" means the services to be supplied by the Processor to the Controller pursuant to the Principal Agreement.
“Products” means the products to be supplied by the Processor to the Controller pursuant to the Principal Agreement.
"Standard Contractual Clauses" means the standard contractual clauses for the transfer of personal data to Processors established in third countries, as approved by the European Commission Decision 2010/87/EU, or any set of clauses approved by the European Commission which amends, replaces or supersedes these.
2.1. In the course of providing the Services and/or Products to the Controller pursuant to the Principal Agreement, the Processor may process Controller personal data on behalf of the Controller as per the terms of this Addendum. The Processor agrees to comply with the following provisions with respect to any Controller personal data.
2.2. To the extent required by applicable Data Protection Laws, the Processor shall obtain and maintain all necessary licenses, authorizations and permits necessary to process personal data including personal data mentioned in Annex 1.
The Processor shall maintain all the technical and organizational measures to comply with the requirements set forth in the Addendum and its Annexes.
3.1 The Processor shall only process Controller Personal Data for the purposes of the Principal Agreement. The Processor shall not process, transfer, modify, amend or alter the Controller Personal Data or disclose or permit the disclosure of the Controller personal data to any third party other than in accordance with Controller’s documented instructions, unless processing is required by EU or Member State law to which Processor is subject. The Processor shall, to the extent permitted by such law, inform the Controller of that legal requirement before processing the Personal Data and comply with the Controller’s instructions to minimize, as much as possible, the scope of the disclosure.
3.2 For the purposes set out in section above, the Controller hereby instructs the Processor to transfer Controller Personal Data to the recipients in the Third Countries listed in Annex 3 (Authorised Transfers of Controller Personal Data), always provided that Processor shall comply with section Sub-P.
4.1 The Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Controller personal data, ensuring in each case that access is strictly limited to those individuals who require access to the relevant Controller Personal Data.
4.2 The Processor must ensure that all individuals which have a duty to process controller personal data:
4.2.1 Are informed of the confidential nature of the Controller Personal Data and are aware of Processor's obligations under this Addendum and the Principal Agreement in relation to the Controller Personal Data;
4.2.2 Have undertaken appropriate training/certifications in relation to the Data Protection Laws or any other training/certifications requested by Controller;
4.2.3 Are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and
4.2.4 Are subject to user authentication and logon processes when accessing the Controller Personal Data in accordance with this Agreement, the Principal Agreement and the applicable Data Protection Laws.
5.1 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, the Processor shall implement appropriate technical and organizational measures (Annex 2) to ensure a level of Controller Personal Data security appropriate to the risk, including but not limited to:
5.1.1 Pseudonymization and encryption;
5.1.2 The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
5.1.3 The ability to restore the availability and access to Controller Personal Data in a timely manner in the event of a physical or technical incident; and
5.1.4 A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.
5.2 In assessing the appropriate level of security, the Processor shall take into account the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Controller Personal Data transmitted, stored or otherwise processed.
6.1 As of the Addendum Effective Date, the Controller hereby authorises the Processor to engage those Sub-Processors set out in Annex 4 (Authorised Sub-Processors). The Processor shall not engage any Data Sub-Processors to Process Controller Personal Data other than with the prior written consent of Controller, which Controller may refuse with absolute discretion.
6.2 With respect to each Sub-processor, the Processor shall:
6.2.1 Provide the Controller with full details of the Processing to be undertaken by each Sub-processor.
6.2.2 Carry out adequate due diligence on each Sub-Processor to ensure that it can provide the level of protection for Controller Personal Data, including without limitation, sufficient guarantees to implement appropriate technical and organisational measures in such a manner that Processing will meet the requirements of GDPR, this Agreement, the Principal Agreement and the applicable Data Protection Laws.
6.2.3 Include terms in the contract between the Processor and each Sub-processor which are the same as those set out in this Addendum. Upon request, the Processor shall provide a copy of its agreements with Sub-Processors to Controller for its review.
6.2.4 Insofar as that contract involves the transfer of Controller Personal Data outside of the EEA, incorporate the Standard Contractual Clauses or such other mechanism as directed by the Controller into the contract between the Processor and each Sub-Processor to ensure the adequate protection of the transferred Controller Personal Data.
6.2.5 Remain fully liable to the Controller for any failure by each Sub-Processor to fulfil its obligations in relation to the Processing of any Controller Personal Data.
6.3 As of the Addendum Effective Date, the Controller hereby authorises the Processor to engage those Sub-processors set out in Annex 3 (Authorised Transfers of Controller Personal Data).
7.1 Taking into account the nature of the Processing, the Processor shall assist the Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller's obligation to respond to requests for exercising Data Subject rights as laid down in EU GDPR.
7.2 The Processor shall promptly notify the Controller if it receives a request from a Data Subject, the Supervisory Authority and/or other competent authority under any applicable Data Protection Laws with respect to Controller Personal Data.
7.3 The Processor shall cooperate as requested by the Controller to enable the Controller to comply with any exercise of rights by a Data Subject under any Data Protection Laws with respect to Controller Personal Data and comply with any assessment, enquiry, notice or investigation under any Data Protection Laws with respect to Controller Personal Data or this Agreement, which shall include:
7.3.1 The provision of all data requested by the Controller within any reasonable timescale specified by the Controller in each case, including full details and copies of the complaint, communication or request and any Controller Personal Data it holds in relation to a Data Subject.
7.3.2 Where applicable, providing such assistance as is reasonably requested by the Controller to enable the Controller to comply with the relevant request within the timescales prescribed by the Data Protection Laws.
7.3.3 Implementing any additional technical and organisational measures as may be reasonably required by the Controller to allow the Controller to respond effectively to relevant complaints, communications or requests.
8.1 The Processor shall notify the Controller without undue delay and, in any case, within twenty-four (24) hours upon becoming aware of or reasonably suspecting a Personal Data Breach. The Processor will provide the Controller with sufficient information to allow the Controller to meet any obligations to report a Personal Data Breach under the Data Protection Laws. Such notification shall as a minimum:
8.1.1 Describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
8.1.2 Communicate the name and contact details of the Processor's Data Protection Officer, Privacy Officer or other relevant contact from whom more information may be obtained;
8.1.3 Describe the estimated risk and the likely consequences of the Personal Data Breach; and
8.1.4 Describe the measures taken or proposed to be taken to address the Personal Data Breach.
8.2 The Processor shall co-operate with the Controller and take such reasonable commercial steps as are directed by the Controller to assist in the investigation, mitigation and remediation of each Personal Data Breach.
8.3 In the event of a Personal Data Breach, the Processor shall not inform any third party without first obtaining the Controller’s prior written consent, unless notification is required by EU or Member State law to which the Processor is subject, in which case the Processor shall, to the extent permitted by such law, inform the Controller of that legal requirement, provide a copy of the proposed notification and consider any comments made by the Controller before notifying the Personal Data Breach.
The Processor shall provide reasonable assistance to the Controller with any data protection impact assessments which are required under Article 35 of GDPR and with any prior consultations to any supervisory authority of the Controller which are required under Article 36 of GDPR, in each case solely in relation to Processing of Controller Personal Data by the Processor on behalf of the Controller and considering the nature of the processing and information available to the Processor.
10.1 Processor shall promptly and, in any event, within 90 (ninety) calendar days of the earlier of: (i) cessation of Processing of Controller Personal Data by Processor; or (ii) termination of the Principal Agreement, at the choice of Controller (such choice to be notified to Processor in writing) either:
10.1.1 Return a complete copy of all Controller Personal Data to the Controller by secure file transfer in such format as notified by the Controller to the Processor and securely erase all other copies of Controller Personal Data Processed by the Processor or any Authorised Sub-processor; or
10.1.2 Securely wipe all copies of Controller Personal Data Processed by Processor or any Authorised Sub-processor, and in each case, provide a written certification to the Controller that it has complied fully with the requirements of section Erasure or Return of Controller Personal Data.
10.2 Processor may retain Controller Personal Data to the extent required by Union or Member State law, and only to the extent and for such period as required by Union or Member State law, and always provided that Processor shall ensure the confidentiality of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Union or Member State law requiring its storage and for no other purpose.
Processor shall maintain records of its security standards. Upon Controller's written request, Processor shall provide (on a confidential basis) copies of relevant audit report summaries and/or other documentation reasonably required by Controller to verify Processor's compliance with this DPA. Processor shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Controller, including responses to information security and audit questionnaires, that Controller (acting reasonably) considers necessary to confirm Processor's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
12.1 Processor shall not process Controller Personal Data nor permit any Authorised Sub-processor to process the Controller Personal Data in a Third Country, other than with respect to those recipients in Third Countries (if any) listed in Annex 3 (Authorised Transfers of Controller Personal Data), unless authorized in writing by Controller in advance, via an amendment to this Addendum.
12.2 When requested by Controller, Processor shall promptly enter into (or procure that any relevant Sub-processor of Processor enters into) an agreement with Controller including Standard Contractual Clauses and/or such variation as Data Protection Laws might require, in respect of any processing of Controller Personal Data in a Third Country, which terms shall take precedence over those in this Addendum.
At the request of the Controller, the Processor shall comply with any Code of Conduct approved pursuant to Article 40 of GDPR and obtain any certification approved by Article 42 of EU GDPR, to the extent that they relate to the processing of Controller Personal Data.
14.1 Subject to this section, the parties agree that this Agreement and the Standard Contractual Clauses shall terminate automatically upon termination of the Principal Agreement or expiry or termination of all service contracts entered into by the Processor with the Controller, pursuant to the Principal Agreement, whichever is later.
14.2 Any obligation imposed on the Processor under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum.
14.3 This Addendum, excluding the Standard Contractual Clauses, shall be governed by the governing law of the Principal Agreement for so long as that governing law is the law of a Member State of the European Union.
14.4 Any breach of this Addendum shall constitute a material breach of the Principal Agreement.
14.5 With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including but not limited to the Principal Agreement, the provisions of this Addendum shall prevail with regard to the parties’ data protection obligations for Personal Data of a Data Subject from a Member State of the European Union.
14.6 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Principal Agreement with effect from the Addendum Effective Date first set out above.