SafariOffice Data Processing Agreement
This Data Processing Agreement (the “Data Processing Agreement“) is between you as a company or sole trader (“Company”,”the Company”, “Data Controller”, “You” or “you”) and SafariOffice (“Data Processor”, “Processor”, “SafariOffice”, “We”, “we” or “us”). You and SafariOffice can each be referred to as a party (“Party”. “The Party”) and collectively the parties (“Parties”).
This Data Processing Agreement is an amendment to the SafariOffice Subscription Agreement (the “Subscription Agreement”) and considered to be Additional Terms (“Additional Terms”) as defined in the Subscription Agreement. The Subscription Agreement, together with this Data Processing Agreement and any other Additional Terms make up the Entire Agreement (“Entire Agreement”) between you and SafariOffice.
(A) Company acts as a Data Controller and determines the purposes for which and the means by which Personal Data is processed.
(B) Company wishes to subcontract certain Services, which imply the processing of Personal Data, to the 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 Data Processing Agreement shall have the following meaning:
- 1.1.1 “Data Processing 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 Subscription Agreement;
- 1.1.3 “Contracted Processor” means a Data Processor or 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;
- 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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:
- 126.96.36.199 a transfer of Company Personal Data from the Company to a Contracted Processor; or
- 188.8.131.52 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 services 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.
3. Processor Personnel
- 3.1 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 Subscription 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.
- 4.1 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.
- 5.1 Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company.
6. Data Subject Rights
- 6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organizational 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 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
- 8.1 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.
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 Data Processing 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 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 Data Processing 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 Data Processing Agreement and information it receives about the other Party and its business in connection with this Data Processing 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:
- 12.1.1 disclosure is required by law;
- 12.1.2 the relevant information is already in the public domain.
- 12.2 Notices. All notices and communications given under this Data Processing 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 Data Processing Agreement at such other address as notified from time to time by the Parties changing address. All notices and communications must be in English. If Parties are both located in the Netherlands, the notices and communications may also be in Dutch.
13. Governing Law and Jurisdiction
- 13.1 This Data Processing Agreement is governed by the laws of the Netherlands.
- 13.2 This Data Processing Agreement and the resolution of any dispute related to this Data Processing Agreement or the Service shall be governed by and construed in accordance with the laws of the Netherlands without giving effect to any principles of conflicts of law. Any legal action or proceeding between Parties related to the Agreement shall be brought exclusively in the competent court in ‘s-Hertogenbosch, the Netherlands, and Parties agree to submit to the personal and exclusive jurisdiction of such courts.