Version 1.0 - 03 July 2020
These Data Processing Terms ("Terms") form the agreement ("Principal Agreement") between: The Distributor (“Partner”) acting on its own behalf and as agent for each Partner Affiliate; and Adder Technology Ltd ("Company") acting on its own behalf and as agent for each Company Affiliate.
The terms used in this Agreement shall have the meanings set forth in this Agreement. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Agreement to the Principal Agreement. Except where the context requires otherwise, references in this Agreement to the Principal Agreement are to the Principal Agreement as amended by, and including, this Agreement.
1.1 In this Agreement, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 "Applicable Laws" means (a) 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 (b) 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;
1.1.2 "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;
1.1.3 "Company Group Member" means Company or any Company Affiliate;
1.1.4 "Company Personal Data" means any Personal Data Processed by a Data Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;
1.1.5 "Contracted Processor" means Vendor or a Subprocessor;
1.1.6 "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 "EEA" means the European Economic Area;
1.1.8 "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;
1.1.9 "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.10 "Restricted Transfer" means:
188.8.131.52 a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or
184.108.40.206 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 section [6.4.3 or] 12 below;
1.1.11 "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;
1.1.12 “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
1.1.13 "Partner 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.
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.
1.3 The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
Company warrants and represents that, before any Company Affiliate Processes any Vendor Personal Data on behalf of any Vendor Group Member, Company's entry into this Agreement as agent for and on behalf of that Company Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Company Affiliate.
3. Processing of Partner Personal Data
3.1 Company and each Company Affiliate shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Partner Personal Data; and
3.1.2 not Process Partner Personal Data other than on the relevant Partner Group Member’s documented instructions or as per the Company’s current confidentiality policy available at www.adder.com unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Company or the relevant Company Affiliate shall to the extent permitted by Applicable Laws inform the relevant Partner Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Partner Group Member:
3.2.1 instructs Company and each Company Affiliate (and authorises Company and each Company Affiliate to instruct each Subprocessor) to:
220.127.116.11 in particular, transfer Partner Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Partner Affiliate.
3.3 Annex 1 to this Agreement sets out certain information regarding the Contracted Processors' Processing of the Partner 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 Partner from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Agreement
4. Company and Company Affiliate Personnel
Company and each Company 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 Partner Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Partner 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.
5.1 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, Company and each Company Affiliate shall in relation to the Partner 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.
5.2 In assessing the appropriate level of security, Company and each Company Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6.1 Each Partner Group Member authorises Company and each Company Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
6.2 Company and each Company Affiliate may continue to use those Subprocessors already engaged by Company or any Company Affiliate as at the date of this Agreement, subject to Company and each Company Affiliate in each case as soon as practicable meeting the obligations set out in section 6.3.
6.3 With respect to each Subprocessor, Company or the relevant Company Affiliate shall:
6.3.1 before the Subprocessor first Processes Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by the Principal Agreement;
6.3.2 ensure that the arrangement between on the one hand (a) Company, or (b) the relevant Company Affiliate, or (c) the relevant intermediate Subprocessor; 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 Personal Data as those set out in these Terms and meet the requirements of article 28(3) of the GDPR;
6.3.3 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 (a) Company, or (b) the relevant Company Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Partner Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Company Group Member(s)
6.4 Company and each Company Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Partner Personal Data carried out by that Subprocessor, as if it were party to this Agreement in place of Company.
7. Data Subject Rights
7.1 Taking into account the nature of the Processing, Company and each Company Affiliate shall assist each Partner or Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Partner Group Members' obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 Company shall:
7.2.1 promptly notify the other party if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of the relevant Data Controller or the relevant Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Company shall to the extent permitted by Applicable Laws inform the other party of that legal requirement before the Contracted Processor responds to the request
8. Personal Data Breach
8.1 Company shall without undue delay notify the Partner upon becoming aware or any Subprocessor becoming aware of a Personal Data Breach affecting Personal Data, providing the Partner with sufficient information to allow each Partner Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Partner and Company shall co-operate with each other and each Company Group Member and take such reasonable commercial steps as are directed by either party to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
Company and each Company Affiliate shall provide reasonable assistance to each Partner 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 Partner Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Personal Data
10.1 Subject to sections 10.2 and 10.3 Company and each Company Affiliate shall promptly and in any event within 30 days of the date of cessation of any Services involving the Processing of Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Personal Data.
10.2 Subject to section 10.3, Partner may in its absolute discretion by written notice within 30 days of the Cessation Date require (a) return a complete copy of all Personal Data secure file transfer in such format as is reasonably notified; and (b) delete and procure the deletion of all other copies of Personal Data Processed by any Contracted Processor. Company and each Company Affiliate shall comply with any such written request within 60 days of the Cessation Date.
10.3 Each Contracted Processor may retain 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 Company and each Company Affiliate shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 The Company processing data under this agreement shall provide written certification to the Data controller that it and each Affiliate has fully complied with this section 10 within 90 days of the Cessation Date.
11. Restricted Transfers
11.1 Subject to section 11.3, each party to this agreement (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
11.2 The Standard Contractual Clauses shall come into effect under section 13.1 on the later of:
11.2.1 the data exporter becoming a party to them;
11.2.2 the data importer becoming a party to them; and
11.2.3 commencement of the relevant Restricted Transfer.
11.3 Section 11.1 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.
11.4 Company warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a Company Affiliate, Company's or the relevant Company Affiliate’s entry into the Standard Contractual Clauses under section 11.1, and agreement to variations to those Standard Contractual Clauses made under section 12.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.
12. General Terms
Governing law and jurisdiction
12.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses
12.1.1 the parties to this Agreement hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Agreement, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
12.1.2 this Agreement 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
12.2 Nothing in this Agreement reduces Partner's or any Partner Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Company or any Company 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 Agreement and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail
12.3 Subject to section 14.2, with regard to the subject matter of this Agreement, in the event of inconsistencies between the provisions of this Agreement 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 Agreeement, the provisions of this Agreement shall prevail.
Changes in Data Protection Laws, etc.
12.4 Company may:
12.4.1 by at least [30 (thirty) calendar days'] written notice to Partner from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 13.1), 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
12.4.2 propose any other variations to this Agreement which Company reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.5 If Company gives notice under section 12.4.2, 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.
12.6 Neither Company nor Partner shall require the consent or approval of any Company Affiliate or Partner Affiliate to amend this Agreement pursuant to this section 14.5 or otherwise.
12.7 Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.IN WITNESS WHEREOF, this Agreement is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.