DPA/Processor Terms

SCHEDULE 1
Processor Terms

  1. Definitions and interpretation

    The following definitions and rules of interpretation apply in this Agreement.

    1. Definitions:
    2. Controller: The Customer;
    3. Data Subject: an individual who is the subject of Personal Data.
  2. Personal Data: means any information relating to an identified or identifiable natural person that is processed by the Processor as a result of, or in connection with, the provision of the Services; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
  3. Processor:the Supplier;
    1. Processing, processes and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording. organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.
  4. Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation in Ireland relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
  5. Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
    1. A reference to writing or written includes faxes and email.
    2. In the case of conflict or ambiguity between any of the provisions of this Agreement and the provisions of any agreement governing the provision of the Services, the provisions of this Agreement will prevail
  6. Personal data types and processing purposes
    1. The Controller and the Processor acknowledge that for the purpose of the Data Protection Legislation, the Controller is the controller and the Processor is the processor.
    2. The Controller retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Processor.
  7. Processor’s obligations
    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 Agreement or the Data Protection Legislation. The Processor must promptly notify the Controller if, in its opinion, the Controller’s instruction would not comply with the Data Protection Legislation.
    2. The Processor must promptly comply with any Controller request or instruction requiring the Processor to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
    3. The Processor will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties other than it subcontractors unless the Controller or this Agreement specifically authorises 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.
    4. The Processor will reasonably assist the Controller with meeting the Controller’s compliance obligations under the 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 the Data Protection Legislation.
    5. The Processor must promptly notify the Controller of any changes to Data Protection Legislation that may adversely affect the Processor’s performance of the Services.
  8. Processor’s employees
    1. The Processor will ensure that all employees:
      • 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;
      • have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
      • are aware both of the Processor’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
    2. The Processor will take reasonable steps to ensure the reliability, integrity and trustworthiness of all of the Processor’s employees with access to the Personal Data.
  9. Security
    1. The Processor must at all times implement appropriate technical and organisational measures against unauthorised 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.
    2. The Processor must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
      • the encryption of personal data;
      • the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
      • 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
      • a process for regularly testing, assessing and evaluating the effectiveness of security measures.
  10. Personal Data Breach 
    1. The Processor will promptly and without undue delay notify the Controller if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Processor will use its reasonable endeavours to restore such Personal Data
    2. The Processor will immediately and without undue delay notify the Controller if it becomes aware of:
      • any accidental, unauthorised or unlawful processing of the Personal Data; or
      • any Personal Data Breach.
    3. Where the Processor becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Controller with the following information:
      • description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
      • the likely consequences; and
      • description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.
    4. Immediately following any unauthorised or unlawful Personal Data processing or 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:
      • assisting with any investigation;
      • facilitating interviews with the Processor’s employees and others involved in the matter;
      • making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Controller; and
      • taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
    5. The Processor will not inform any third party of any Personal Data Breach without first obtaining the Controller’s prior written consent, except for its subcontractors or when required to do so by law.
    6. The Processor agrees that the Controller has the sole right to determine:
      • whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Controller’s discretion, including the contents and delivery method of the notice; and
      • whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
  11. Cross-border transfers of personal data
    1. The Processor uses an Irish registered services provider which has a small number of employees who are located in India. Those employees have restricted and logged remote access to Personal Data. While Personal Data is not accessed by them in normal operation it may be accessed to debug specific customer issues. The data will not be moved off an AWS server in Europe. The data transfer is covered by EU standard contractual clauses in a Data Protection Agreement with the Services Provider.
    2. Other than as set out in clause 11.1, the processor The Processor may not transfer or otherwise process Personal Data outside the European Economic Area (EEA) or to countries with a finding of adequate without obtaining the Controller’s prior written consent and subject to any conditions the Controller may require in respect of any such consent.
  12. Complaints, data subject requests and third party rights
    1. The Processor shall take such technical and organisational measures as may be appropriate, and promptly provide such information to the Controller as the Controller may reasonably require, to enable the Controller to comply with:
      • the rights of Data Subjects under the 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
      • information or assessment notices served on the Controller by any supervisory authority under the Data Protection Legislation.
    2. The Processor must notify the Controller immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Legislation.
    3. The Processor must notify the Controller within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
    4. The Processor will give the Controller its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
    5. The Processor must not disclose the Personal Data to any Data Subject or to a third party other than at the Controller’s request or instruction, as provided for in this Agreement or as required by law.
  13. Term and termination
    1. This Agreement will remain in full force and effect so long as the processor continues to provide the Services to the Controller (Term).
    2. Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the provision of the Services in order to protect Personal Data will remain in full force and effect.
    3. The Controller may terminate this agreement in the event of a material breach by the Processor which is not remedied within 30 days of written notice to do so on written notice to the Processor without further liability or obligation.
    4. If a change in any Data Protection Legislation prevents either party from fulfilling all or part of the Services, the parties will suspend the processing of Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within 30 days, they may terminate the agreement for Services between them.
  14. Subcontractors 
    1. The Processor may engage subcontractors in relation to the provision of the Services provided such subcontractor enters into an agreement with the Processor which contains terms substantially inline with the terms of this Agreement.
  15. Data return and destruction
    1. At the Controller’s request, the Processor will give the Controller a copy of or access to all or part of the Controller’s Personal Data in its possession or control in the format and on the media reasonably specified by the Controller.
    2. On termination of the provision of the Services 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 Agreement in its possession or control, except for one copy that it may retain and use for 6 years for audit purposes only.
    3. 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.
    4. The Processor will certify in writing that it has destroyed the Personal Data within 14 days after it completes the destruction.
  16. Records
    1. The Processor will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Controller, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 5.1 (Records).
    2. The Processor will ensure that the Records are sufficient to enable the Controller to verify the Processor’s compliance with its obligations under this Agreement and the Processor will provide the Controller with copies of the Records upon request.
  17. Audit
    1. The Processor will provide the Controller with such information as it reasonably requires from time to time to verify the Processor’s compliance with its Agreement,
    2. If a Personal Data Breach occurs or is occurring, or the Processor becomes aware of a breach of any of its obligations under this Agreement or any Data Protection Legislation, the Processor will:
      • conduct its own audit to determine the cause;
      • produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
      • provide the Controller with a copy of the written audit report; and
      • remedy any deficiencies identified by the audit as soon as reasonably possible.
  18. Warranties
    1. The Processor warrants and represents that:
      • its employees, subcontractors, agents and any other person or persons accessing Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation relating to the Personal Data;
      • it ill process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;
      • it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Services; and
      • considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:
        1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage;
        2. the nature of the Personal Data protected; and
        3. comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in clause 5.1.
    2. The Controller warrants and represents
      • that the Processor’s expected use of the Personal Data for the Business Purposes and as specifically instructed by the Controller will comply with the Data Protection Legislation; and
      • the Controller has all required consents and authorisations to transfer the Customer Data to the Process and to permit the Processor to process the Customer Data in accordance with this Schedule.

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