Data Processing Agreement

Background

The Client and Expense entered into the Framework Agreement, dated as of the Effective Date of the Quotation Document, that may require Expense to process personal data on behalf of the Client.

For the purpose of this document, the Client will be referred to hereafter as the controller and Expense as the processor.

This Data Processing Agreement (DPA) sets out the additional terms, requirements and conditions on which the processor will process personal data when providing services under the Framework Agreement. This DPA contains the mandatory clauses required by Article 28(3) and (4) of the GDPR for contracts between controllers and processors.

Agreed terms 

1. Definitions and Interpretation

The following definitions and rules of interpretation apply to this DPA.

1.1. Definitions:
Business purposes means the services described in the Framework Agreement and/or any other purpose specifically identified in the data protection details.

Data processing details means the data processing details mentioned on the first page of this DPA.

Data protection legislation means the GDPR and the applicable implementation legislation.

GDPR means Regulation (EU) 2016/679 of the European Parliament and of Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

Sensitive data means personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences.

Controller, data protection impact assessment, data subject, personal data, personal data breach, process(ing) and processor shall have the same meaning as in the GDPR.

1.2 This DPA is subject to the terms of the Framework Agreement and is incorporated into the Framework Agreement.

1.3 In case of conflict or ambiguity between any of the provisions of this DPA and the provisions of the Framework Agreement, the provisions of this DPA will prevail.

2. Personal data types and processing purposes

2.1 The controller retains control of the personal data and remains responsible for:

2.1.1 its compliance obligations under the applicable data protection legislation, including (i) providing any required notices, (ii) ensuring that there is a valid legal basis to process the personal data and, if applicable, for obtaining any required consents, and

2.1.2 for the processing instructions it gives to the processor.

2.2The controller shall inform the processor of any additional national and/or sector-specific mandatory legislation that applies to the processing by the processor as a result of the processing by, or involvement of, the controller.

2.3 The controller shall ensure that (i) no sensitive data is uploaded into the processor’s solution and (ii) that personal data and other sensitive information such as credit card data is only shared through the specifically protected communication channels in accordance with the applicable guidelines and standards. The controller may always request additional clarifications regarding the use of and the applicable policies regarding the use of such protected communication channels.

2.4 The data protection details describe the nature and purpose of processing, the retention term(s) and the personal data categories and data subject types in respect of which the processor may process to fulfil the business purposes.

2.5 The controller warrants towards the processor that any personal data disclosed to the processor was collected in a lawful way and does not infringe upon the rights and freedoms of the data subjects and/or third parties.

3. Processor's obligations

3.1 The processor will only process the personal data to the extent, and in such a manner, as is necessary for the business purposes in accordance with the controller's written instructions. The processor will not process the personal data for any other purpose or in a way that does not comply with this dpa or data protection legislation. The processor must promptly notify the controller if, in its opinion, the controller's instruction would not comply with data protection legislation.

3.2 The processor will maintain the confidentiality of all personal data and will not disclose personal data to third parties unless the controller or this dpa specifically authorizes the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires the processor to process or disclose personal data, the processor must first inform the controller of the legal or regulatory requirement and give the controller an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.3 The processor will reasonably assist the controller with meeting the controller's compliance obligations under data protection legislation, taking into account the nature of the processor's processing and the information available to the processor, including in relation to data subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under data protection legislation.

4. Processor's employees

4.1 The processor will ensure that all employees:

4.1.1 are informed of the confidential nature of the personal data and are bound by confidentiality obligations and use restrictions in respect of the personal data; and

4.1.2 are aware of the processor's duties and their personal duties and obligations under data protection legislation and this DPA.

5. Security

5.1 The processor must implement appropriate technical and organizational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of personal data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of personal data, as further described in the data protection policy and technical and organizational measures.

5.2 The processor must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

5.2.1 the pseudonymization and encryption of personal data;

5.2.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

5.2.3 the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

5.2.4 a process for regularly testing, assessing and evaluating the effectiveness of security measures.

5.3 The controller is responsible for the proper creation and management of its user accounts, including user account disabling and account reviews. The controller must mainly ensure that:

5.3.1 access and authorizations are granted on a need-to-have basis;

5.3.2 each individual is assigned with a unique account;

5.3.3 accounts are periodically reviewed to validate their relevance;

5.3.4 no generic accounts are used;

5.3.5 passwords contain at least 8 characters consisting in a combination of characters, numbers and symbols;

5.3.6 passwords lifespan does not exceed 90 days;

5.3.7 suspected compromised accounts are disabled at once.

6. Personal data breach

6.1 The processor will without undue delay and in any case within 48 hours notify the controller if it becomes aware of a personal data breach.

6.2 Where the processor becomes aware of a personal data breach, it shall, without undue delay, also provide the controller with the following information:

6.2.1 description of the nature thereof, including the categories and approximate number of both data subjects and personal data records concerned;

6.2.2 the likely consequences; and

6.2.3 description of the measures taken or proposed to be taken to address the personal data breach, including measures to mitigate its possible adverse effects.

6.3 Immediately following a personal data breach, the parties will co-ordinate with each other to investigate the matter. The processor will reasonably co-operate with the controller in the controller's handling of the matter, including:

6.3.1 assisting with any investigation;

6.3.2 taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the personal data breach.

6.4 The processor will not inform any third party of any personal data breach without first obtaining the controller's prior written consent, except when required to do so by law.

6.5 The processor has the right to charge the controller for its assistance under this clause on a time and materials basis (and any other reasonable additional amount, in the event the assistance or format would require substantial additional costs or efforts than reasonably foreseeable), unless the matter arose from the processor’s negligence, wilful misconduct or breach of this DPA.      

7. Sub-processors

7.1 The processor may only authorize third parties (sub-processors) to process the personal data
if:

7.1.1 The controller is provided with an opportunity to object the appointment of each sub-processor within 14 days after the processor has notified the controller of its intention to appoint such sub-processor, it being understood that the controller shall only object to such appointment in writing and on reasonable and evidenced grounds within a period of fourteen (14) days after the written notification from the processor. In the event the controller objects a sub-processor, the processor will either not appoint or replace said sub-processor. Additionally, the controller acknowledges that the absence of the appointment of the recommended sub-processor or its replacement may result in (i) a lower quality of the requested services; and/or (ii) the partial termination of the Framework Agreement for that part of the services rendered by the initially appointed sub-processor; and/or (iii) the general termination of the Framework Agreement in the event the sub-processor’s services are indispensable for the provision of the services as set forth in the Framework Agreement, unless a replacer with similar experience is found within a reasonable time ; and

7.1.2 The processor enters into a written contract with the sub-processor that contains terms substantially the same as those set out in this DPA, in particular, in relation to requiring appropriate technical and organizational data security measures, and, upon the controller’s written request, provides the controller with copies of such contracts.

7.2 Those sub-processors approved at the commencement of this DPA are as set out in the data protection details.

7.3 Without prejudice to Clause 1.1, the processor shall remain fully liable to the controller for any failure by a sub-processor to fulfil its obligations in relation to the processing of the personal data.

8. Cross-border transfers of personal data

8.1 Any transfer of personal data to a third country or an international organization by the processor shall be done only based on documented instructions from the controller or in order to fulfil a specific requirement under European Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of the GDPR.

8.2 The controller agrees that where the processor engages a sub-processor in accordance with Clause 7 for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of the GDPR, the processor and the sub-processor can ensure compliance with Chapter V GDPR by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) GDPR, provided the conditions for the use of those standard contractual clauses are met.

9. Complaints, data subject requests and third-party rights

9.1 The processor must take such technical and organizational measures as agreed in writing between the parties, and promptly provide such information to the controller as the controller may reasonably require, to enable the controller to comply with:

9.1.1 the rights of data subjects under data protection legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and

9.1.2 information or assessment notices served on the controller by any supervisory authority under data protection legislation.

9.2 The processor must promptly notify the controller immediately if it receives (i) any complaint, notice or communication that relates directly or indirectly to the processing of the personal data or to either party’s compliance with data protection legislation or (ii) a request from a data subject for access to their personal data or to exercise any of the other rights under data protection legislation.

9.3 The processor will reasonably cooperate with, and assist, the controller in responding to any complaint, notice, communication or data subject request.

9.4 The processor has the right to charge the controller for its assistance under this Clause on a time and materials basis and any other reasonable additional amount, in the event the assistance or format would require substantial additional costs or efforts than reasonably foreseeable,) unless the matter arose from the processor’s negligence, willful misconduct or breach of this DPA.

10. Term and termination

10.1 This DPA will remain in full force and effect so long as:

10.1.1 the Framework Agreement remains in effect; or

10.1.2 the processor retains any personal data related to the Framework Agreement in its possession or control (Term).

10.2 Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Framework Agreement (including, but not limited to, Clause 1.1) will remain in full force and effect.

11. Data return and destruction

11.1 On termination of the Framework Agreement for any reason or expiry of its term, the processor will securely delete or destroy or, if directed in writing by the controller, return and not retain, all or any personal data related to this dpa in its possession or control.

11.2 If any law, regulation, or government or regulatory body requires the processor to retain any documents or materials that the processor would otherwise be required to return or destroy, it will notify the Controller in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

11.3 The Processor will certify in writing that it has destroyed the personal data within fourteen (14) days after it completes the destruction.

12. Audit

12.1 The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations under this DPA and data protection legislation.

12.2 Any such audit may not take place more than once every contract year, shall be at the sole expense of the controller and shall be subject to the controller providing the processor with at least thirty (30) days prior written notice of its intention to perform an audit. The audit shall take place during the normal business hours and shall not unreasonably interfere with the processor’s business activities. The processor shall have the right to require controller and any third-party auditor to enter into a non-disclosure agreement prior to performing the audit.

12.3 The processor has the right to charge the controller for its assistance under this Clause on a time and materials basis and any other reasonable additional amount, (in the event the assistance or format would require substantial additional costs or efforts than reasonably foreseeable,) unless the audit reveals any material non-compliance by processor with its obligations under this DPA or under data protection legislation.

13. Limitation of liability    

13.1 To the extent permitted under applicable law, any limitations and/or exclusions of liability in the Framework Agreement are applicable to this DPA.

13.2 In case of standalone DPA or no limitation of liability clause in the Framework Agreement:

To the maximum extent permitted under applicable law, the processor's total liability arising out of or in connection with these provisions (whether in contract, tort (including negligence) or otherwise) for all causes or actions arising in any contract year shall be limited to all fees (excluding taxes and expenses) paid by the controller to the processor during the contract year in which the liability claim was raised. The controller shall have no recourse against the processor for all damages and fines imposed by the supervisory authority as a result of negligence, default or omission by the controller or its affiliates.

13.3 To the maximum extent permitted under applicable law, the processor excludes its liability for any indirect, consequential, punitive, or special damages arising from these provisions.

13.4 The exclusions and limitations of liability under this clause shall operate in favour of processor-affiliated sub-processors and third parties on whom processor depends. The processor shall not be held liable for any damage or loss (whether or not caused by error, gross misconduct or wilful misconduct) caused by a third party (including, but not limited to, third party software, hosting services, systems or tools). The processor will only be liable towards the controller to the extent of the amount it is able to recover from the sub-processor or third parties.

13.5 The controller shall indemnify, defend and hold harmless the processor against all third party and data subject claims if it has failed to comply with or breached one or more obligations under the applicable data protection legislation or this DPA.

14. Miscellaneous 

14.1 The provisions of the Framework Agreement concerning (amongst others) amendments, severability, applicable law and jurisdiction are applicable to this DPA.