In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
Applicable Laws means
European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and
any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws;
Company Affiliate means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
Company Group Member means Company or any Company Affiliate;
Company Personal Data means any Personal Data Processedi by a Contracted Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
Contracted Processor means Vendor or a Subprocessor;
Data Protection Laws means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
EEA means the European Economic Area;
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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
GDPR means EU General Data Protection Regulation 2016/679;
Restricted Transfer means:
a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or
an onward transfer of Company Personal Data from a Contracted Processor to a Contracted 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) in the absence of the Standard Contractual Clauses to be established under Terms for Restricted Transfers or Restricted Transfers below;
Services means the services and other activities to be supplied to or carried out by or on behalf of Vendor for Company Group Members pursuant to the Principal Agreement;
Standard Contractual Clauses means the contractual clauses set out in Standard Contractual Clauses, amended as indicated (in square brackets and italics) in that Annex and under Company Action on Changes of Laws;
Subprocessor means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Principal Agreement; and
Vendor Affiliate means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
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.
The word include shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
Vendor warrants and represents that, before any Vendor Affiliate Processes any Company Personal Data on behalf of any Company Group Member, Vendor's entry into this Addendum as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Vendor Affiliate.
Processing of Company Personal Data
Vendor and each Vendor Affiliate shall:
comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
not Process Company Personal Data other than on the relevant Company Group Member's documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Vendor or the relevant Vendor Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.
Each Company Group Member:
Instructs Vendor and Vendor Affiliates
instructs Vendor and each Vendor Affiliate (and authorises Vendor and each Vendor Affiliate to instruct each Subprocessor) to:
Process Company Personal Data; and
in particular, transfer Company Personal Data to any country or territory,
as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in Instructs Vendor and Vendor Affiliates on behalf of each relevant Company Affiliate.
Information on Processing
Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Company may make reasonable amendments to Annex 1 by written notice to Vendor from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to Information on Processing) confers any right or imposes any obligation on any party to this Addendum.
Vendor and Vendor Affiliate Personnel
Vendor and each Vendor Affiliate 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.
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, Vendor and each Vendor Affiliate 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.
In assessing the appropriate level of security, Vendor and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Each Company Group Member authorises Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with Subprocessing and any restrictions in the Principal Agreement.
Already Engaged Subprocessors
Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as at the date of this Addendum, subject to Vendor and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in Each Subprocessor.
Vendor shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within of receipt of that notice, Company notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment:
Neither Vendor nor any Vendor Affiliate shall appoint (or disclose any Company Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Company Group Member and Company has been provided with a reasonable written explanation of the steps taken.
Vendor shall work with Company in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and
where such a change cannot be made within from Vendor's receipt of Company's notice, notwithstanding anything in the Principal Agreement, Company may be written notice to Vendor with immediate effect terminate the Principal Agreement to the extent that it relates to the Services which require the user of the proposed Subprocessor.
Neither Vendor nor any Vendor Affiliate shall appoint (nor disclose any Company Personal Data to) the proposed Subprocessor except with the prior written consent of Company.
With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall:
before the Subprocessor first Processes Company Personal Data (or, where relevant, in accordance with Already Engaged Subprocessors), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the Principal Agreement;
ensure that the arrangement between on the one hand
the relevant Vendor Affiliate, or
the relevant intermediate Suprocessor;
and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
Terms for Restricted Transfers
if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand
the relevant Vendor Affiliate, or
the relevant intermediate Subprocessor;
and on the other hand the Subprocessor, or before the Subprocessor first Processes Company Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s) (and Company shall procure that each Company Affiliate party to any such Standard Contractual Clauses co-operates with their population and execution); and
provide to Company for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Company may request from time to time.
Vendor and each Vendor Affiliate shall ensure that each Subprocessor performs the obligations under Basic Compliance, Vendor and Vendor Affiliate Personnel, Security, Technical and Organisational Measures, Data Breach Cooperation, Data Protection Impact Assessment and Prior Consultation and Basic Audit Right, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Vendor.
Data Subject Rights
Technical and Organisational Measures
Taking into account the nature of the Processing, Vendor and each Vendor Affiliate shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members' obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
promptly notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Vendor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
Personal Data Breach
Vendor shall notify Company without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Data Breach Cooperation
Vendor shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
Vendor and each Vendor Affiliate shall provide reasonable assistance to each Company Group Member 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 of any Company Group Member 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.
Deletion or return of Company Personal Data
Subject to sections 10.2 and 10.3 Vendor and each Vendor Affiliate shall promptly and in any event within 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.
Subject to section 10.3, Company may in its absolute discretion by written notice to Vendor within of the Cessation Date require Vendor and each Vendor Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Vendor; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Vendor and each Vendor Affiliate shall comply with any such written request within of the Cessation Date.
Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Vendor and each Vendor Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
Vendor shall provide written certification to Company that it and each Vendor Affiliate has fully complied with this section 10 within of the Cessation Date.
Basic Audit Right
Subject to sections , Vendor and each Vendor Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Company Personal Data by the Contracted Processors.
Information and audit rights of the Company Group Members only arise under Basic Audit Right to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
Optional: A Company Group Member may only mandate an auditor for the purposes of Basic Audit Right if the auditor is identified in the list set out in Annex 3 to this Addendum, as that list is amended by agreement between the parties in writing from time to time. Vendor shall not unreasonably withhold or delay agreement to the addition of a new auditor to that list.
Optional: Company or the relevant Company Affiliate undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under Basic Audit Right and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
to any individual unless he or she produces reasonable evidence of identity and authority;
outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiilate undertaking an audit has given notice to Vendor or the relevant Vendor Affiliate that this is the case before attendance outside those hours begins; or
for the purposes of more than audit or inspection, in respect of each Contracted Processor, in any , except for any additional audits or inspections which:
Company or the relevant Company Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor's or the relevant Vendor Affiliate's compliance with this Addendum; or
A Company Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,
where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.
Requirement to Enter Standard Clauses
Subject to Exception to Requirement to Enter Standard Clauses, each Company Group Member (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
The Standard Contractual Clauses shall come into effect under Requirement to Enter Standard Clauses on the later of:
the data exporter becoming a party to them;
the data importer becoming a party to them; and
commencement of the relevant Restricted Transfer.
Exception to Requirement to Enter Standard Clauses
Requirement to Enter Standard Clauses shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
Optional:Vendor warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a Vendor Affiliate, Vendor's or the relevant Vendor Affiliate's entry into the Standard Contractual Clauses under Requirement to Enter Standard Clauses, and agreement to variations to those Standard Contractual Clauses made under Make Variations to Standard Clauses, as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.
Governing law and jurisdiction
Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
No Reduction of Obligations
Nothing in this Addendum reduces Vendor's or any Vendor Affiliate's obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Subject to No Reduction of Obligations, 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 the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
Changes in Data Protection Laws, etc.
Company Action on Change in Laws
Make Variations to Standard Clauses
by at least written notice to Vendor from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under Requirement to Enter Standard Clauses), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
Propose Other Variations
propose any other variations to this Addendum which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
If Company gives notice under Make Variations to Standard Clauses:
Optional: Vendor and each Vendor Affiliate shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under Terms for Restricted Transfers; and
Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Vendor to protect the Contracted Processors against additional risks associated with the variations made under Make Variations to Standard Clauses.
If Company gives notice under Propose Other Variations, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company's notice as soon as is reasonably practicable.
Neither Company nor Vendor shall require the consent or approval of any Company Affiliate or Vendor Affiliate to amend this Addendum pursuant to this Variation Procedure or otherwise.
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:
amended as necessary to ensure its validity and enforceability, while preserving the parties' intentions as closely as possible or, if that is not possible; or
construed in a manner as if the invalid or unenforceable part had never been contained herein.
Details of Processing of Company Personal Data
This Annex includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.
The nature and purpose of the Processing of Company Personal Data
The types of Company Personal Data to be Processed
The categories of Data Subject to whom the Company Personal Data relates
The obligations and rights of Company and Company Affiliates
The obligations and rights of Company and Company Affiliates are set out in the Principal Agreement and this Addendum.