Data Processing Agreement

The purpose of this DPA is to ensure compliance with the Applicable Data Protection Legislation. “Applicable Data Protection Legislation” means where applicable, Regulation (EU) 2016/679 regarding the Personal Data Protection (“GDPR”) and any other applicable law which governs the agreements between the Parties in the field of data protection and which require the signing of a data protection agreement (such as the UK Data Protection Act 2018).

The controllers and processors listed in Annex I have agreed to this DPA in order to ensure compliance with the Applicable Data Protection Legislation.

The DPA applies to the processing of personal data as specified in Annex II.

Annexes I to IV are an integral part of the DPA.

This DPA does not affect the obligations to which the controller is subject by virtue of the Applicable Data Protection Legislation.

Where this DPA uses the terms defined in the Applicable Data Protection Legislation, those terms shall have the same meaning as thereinunder.

This DPA shall be read and interpreted in the light of the provisions of the Applicable Data Protection Legislation. This DPA forms an integral part of the Main Agreement and, in case of conflict, Clause 3 (Hierarchy) shall apply.

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, the Clauses shall prevail.

Any entity that is not a Party to the DPA may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.

Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.

The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

The processor shall process personal data only on documented instructions from the controller, unless required to do so by the Applicable Data Protection Legislation to which the processor is subject, including those provided in the Annexes hereunder. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.

The processor shall promptly inform the controller if, in the processor’s opinion, instructions given by the controller infringe the Applicable Data Protection Legislation provisions.

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

Processing by the processor shall only take place for the duration specified in Annex II.

The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

If the processing involves 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 (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

The Parties shall be able to demonstrate compliance with these Clauses.

The processor shall deal with inquiries from the controller about the processing of data in accordance with these Clauses.

The processor shall make available to the controller reasonable information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from the Applicable Data Protection Legislation, subject to confidentiality obligations. At the controller’s request, the processor shall permit and contribute to one audit per year regarding the processing of the activities covered by these Clauses, during business hours and subject to the Customer’s payment of the relevant costs. Additional audits may only be requested where required by the Applicable Data Protection Legislation, such as in the event of indications of non-compliance or at the instruction of a supervisory authority. In deciding on whether to exercise its audit right, the controller may take into account relevant certifications held by the processor. All costs incurred by the processor in connection with the audit will be borne by the controller. The controller may only mandate an independent auditor. Audits shall be carried out only with reasonable notice but no less than 72 hours and be subject to confidentiality obligations.

The Parties shall make the information referred to in this DPA, including the results of any audits, available to the competent supervisory authority/ies on request.

GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list provided in the Annexes hereunder as amended from time to time in accordance with this Clause 6.7(a). The processor shall inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 15 business days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object. If processor does not receive a written notice of objection and termination in accordance with this section, it will be deemed in good faith that the controller has accepted the change in sub-processors. If the Customer does not agree with any new sub-processor, it has the sole right to immediately terminate the Main Agreement and the DPA.

If the Applicable Data Protection Legislation so requires, any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under the Applicable Data Protection Legislation to which the processor is subject and shall take place in compliance with the Applicable Data Protection Legislation.

The controller agrees that where the processor engages a sub-processor in accordance with Clause 6.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data, the processor and the sub-processor can ensure compliance with the Applicable Data Protection Legislation and are hereby authorized to transfer the controller’s personal data to third-countries by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679 provided the conditions for the use of those standard contractual clauses are met, or adequacy decisions.

The processor shall notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

At controller’s cost, the processor shall provide reasonable assistance, to the extent technically feasible and proportionate, in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing and the information available to the processor.

In addition to the processor’s obligation to assist the controller pursuant to Clause 7 (b), the processor shall assist the controller in ensuring compliance with the other obligations for which the Applicable Data Protection Legislation provide for processor’s contribution and assistance.

The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

In the event of a personal data breach, the processor shall cooperate and provide reasonable assistance, taking into account the nature of processing and the information available to the processor, and assist the controller for the controller to comply with its obligations under the Applicable Data Protection Legislation, where applicable, taking into account the nature of processing and the information available to the processor.

In the event of a personal data breach concerning data processed by the controller and the processor, the processor shall reasonably assist the controller, if the following are under processor’s control or knowledge:

in notifying the personal data breach to the competent supervisory authority/ies, without undue delay and in any event within 24 hours after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

in obtaining the information which, pursuant to Article 33(3) of the GDPR and any other Applicable Data Protection Legislation, must be stated in the controller’s notification;

in complying, pursuant to the Applicable Data Protection Legislation and when expressly provided thereunder, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

a description of the nature of the breach;

the details of a contact point where more information concerning the personal data breach can be obtained;

its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under the Applicable Data Protection Legislation.

Without prejudice to any provisions of the Applicable Data Protection Legislation, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

This DPA may be terminated by the either Party upon written notice with immediate effect, in case of the other Party’s material breach of the DPA and/or as provided under the Applicable Data Protection Legislation. This Agreement will terminate immediately upon termination of the Main Agreement. Customer understands and accepts that upon termination of this DPA, the Products functionalities may be impacted.

Unless otherwise agreed between the Parties in, or in accordance with, the Main Agreement, termination of this DPA will not cause the immediate termination of the Main Agreement.

This DPA may be amended by Genezio, however, the DPA version applicable to Customer’s Products are those in effect at the time of Subscription Term renewal, purchase, or license acquisition and will not change during the respective subscription term, except that for new features, offerings, supplements, or related software, new or additional DPA terms may apply.

Deletion or return of personal data. Upon termination or expiry of the Main Agreement, and at the choice of the controller notified to the processor in writing, the processor shall delete or return to the controller all personal data processed on behalf of the controller, and shall delete existing copies, within 60 days of such termination or expiry, unless retention is required by the Applicable Data Protection Legislation or other applicable law, in which case the processor shall inform the controller of that requirement. Where no choice is notified within 60 days of termination or expiry, the processor shall delete the personal data. Deletion from backups takes place in accordance with the backup retention cycle described in Annex III. Upon the controller’s written request, the processor shall provide written confirmation of deletion.