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Data Processing Agreement
This Data Processing Agreement ("Agreement") forms part of the Contract for
Services under the ISVApp Master Subscription and Services Agreement (the
"Principal Agreement"). This Agreement is an amendment to the Principal Agreement
and is effective upon its incorporation to the Principal Agreement, which incorporation
may be specified in the Principal Agreement or an executed amendment to the
Principal Agreement. Upon its incorporation into the Principal Agreement, this
Agreement will form a part of the Principal Agreement.
WHEREAS
(A) The Company acts as a Data Controller.
(B) The Company wishes to subcontract certain Services, which imply the processing
of personal data, to the Data Processor.
(C) The Parties seek to implement a data processing agreement that complies with the
requirements of the current legal framework in relation to data processing and with the
Regulation (EU) 2016/679 of the European Parliament and of the 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
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 "Company Personal Data" means any Personal Data Processed by a
Contracted Processor on behalf of Company pursuant to or in connection
with the Principal Agreement;
1.1.3 "Contracted Processor" means a Subprocessor;
1.1.4 "Data Protection Laws" means EU Data Protection Laws and, to the extent
applicable, the data protection or privacy laws of any other country;
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1.1.5 "EEA" means the European Economic Area;
1.1.6 "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed
into domestic legislation of each Member State and as amended,
replaced or superseded from time to time, including by the GDPR and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 Company Personal Data from the Company to a
Contracted Processor; or
1.1.8.2 an onward transfer of Company Personal Data from a
Contracted Processor to a Subcontracted Processor, or between two
establishments of a Contracted Processor, in each case, where such
transfer would be prohibited by Data Protection Laws (or by the terms
of data transfer agreements put in place to address the data transfer
restrictions of Data Protection Laws);
1.1.9 "Services" means the ISVapp Analytics services the Company provides.
1.1.10 "Subprocessor" means any person appointed by or on behalf of
Processor to process Personal Data on behalf of the Company 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 the GDPR, and their cognate terms shall be
construed accordingly.
2. Processing of Company Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of
Company Personal Data; and
2.1.2 not Process Company Personal Data other than on the relevant
Company’s documented instructions.
2.2 The Company instructs Processor to process Company Personal Data.
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3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent
or contractor of any Contracted Processor who may have access to the Company
Personal Data, ensuring in each case that access is strictly limited to those individuals
who need to know / access the relevant Company 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 Contracted Processor, ensuring that all such
individuals are subject to confidentiality undertakings or professional or statutory
obligations of confidentiality.
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 Company 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, Processor shall take account in
particular of the risks that are presented by Processing, in particular from a
Personal Data Breach.
5. Sub-processing
Processor shall not appoint (or disclose any Company Personal Data to) any
Subprocessor other than Salesforce and Amazon Web Services (AWS) unless required
or authorized by Controller.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, Processor shall assist the
Company by implementing appropriate technical and organisational measures, insofar
as this is possible, for the fulfilment of the Company obligations, as reasonably
understood by Company, to respond to requests to exercise Data Subject rights under
the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Company if it receives a request from a Data Subject under
any Data Protection Law in respect of Company Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented
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instructions of Company 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 Company of that legal requirement before the
Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Processor shall notify Company without undue delay upon Processor becoming
aware of a Personal Data Breach affecting Company Personal Data, providing
Company with sufficient information to allow the Company to meet any obligations
to report or inform Data Subjects of the Personal Data Breach under the Data
Protection Laws.
7.2 Processor shall co-operate with the Company and take reasonable commercial
steps as are directed by Company to assist in the investigation, mitigation and
remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to the Company with any data
protection impact assessments, and prior consultations with Supervising Authorities or
other competent data privacy authorities, which Company reasonably considers to be
required by article 35 or 36 of the GDPR or equivalent provisions of any other Data
Protection Law, in each case solely in relation to Processing of Company Personal
Data by, and taking into account the nature of the Processing and information available
to, the Contracted Processors.
9. Deletion or return of Company 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
Company Personal Data (the "Cessation Date"), delete and procure the deletion of all
copies of those Company Personal Data.
9.2 Processor shall provide written certification to Company 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 Company on
request all information necessary to demonstrate compliance with this
Agreement, and shall allow for and contribute to audits, including inspections, by
the Company or an auditor mandated by the Company in relation to the
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Processing of the Company Personal Data by the Contracted Processors.
10.2 Information and audit rights of the Company 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 may 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 Company. 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.
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:
(a) disclosure is required by law;
(b) 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.
13. Governing Law and Jurisdiction
13.1 This Agreement is governed by the German law.
13.2 Any dispute arising in connection with this Agreement, which the Parties will not
be able to resolve amicably, will be submitted to the exclusive jurisdiction of the
courts of Munich, subject to possible appeal to the German Federal Supreme
Court.
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