Data Processing Addendum

FONREACH – EU – DATA PROTECTION ADDENDUM

 

This Data Protection Addendum (DPA) forms part of the Fonreach Terms of Use (“Principal Agreement”) between: (i) Fonreach acting on its own behalf and as agent for each Fonreach Affiliate; and (ii) Customer acting on its own behalf and as agent for each Company Affiliate.

The terms used in this Addendum shall have the meanings set forth in this Addendum. 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 Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.

Definitions
 

  • In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
     

    • “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;

    • “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 Processed by a Contracted Processor on behalf of a Company Group Member pursuant to or in connection with the Principal Agreement;

    • “Contracted Processor ” means Fonreach 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 section 12 below;

    • “Services ” means the services and other activities to be supplied to or carried out by or on behalf of Fonreach for Company Group Members pursuant to the Principal Agreement;

    • “Standard Contractual Clauses ” means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that
      Annex and under section 13.4;

    • “Vendor Affiliate ” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Fonreach, 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.

Authority

 

Fonerach warrants and represents that, before any Fonerach Affiliate Processes any Company Personal Data on behalf of any Company Group Member, Fonreach’s entry into this Addendum as agent for and on behalf of that Fonreach Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Fonreach Affiliate.

 

Processing of Company Personal Data

 

  • Fonreach and eachFonreach 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 Fonreach or the relevant Fonreach 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 Fonreach and each FonreachAffiliate (and authorises Fonreach and each Fonreach 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 section 3.2.1 on behalf of each relevant Company Affiliate.

       

  • 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 Fonreach 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 Addendum.

 

Fonreach and Fonreach Affiliate Personnel

 

Fonreach and each Fonreach 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.

 

Security

 

  • 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, Fonreach and each Fonreach 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, Fonreach and each Fonreach Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

 

Subprocessing

 

  • Fonreach has no subprocessors for processing personal data. Fonreach itself processes Company Personal Data and carry out adequate due diligence to ensure that it is capable of providing the level of protection for Company Personal Data required by the Principal Agreement.

 

Data Subject Rights

 

  • Taking into account the nature of the Processing, Fonreach and each Fonreach 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

  • Fonreach shall:

     

    • 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 Fonreach 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

 

  • Fonreach shall notify Company without undue delay upon Fonreach 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.

  • Fonreach 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

 

Fonreach and each Fonreach 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 Fonreach and each Fonreach Affiliate shall promptly and in any event within 6 years otherwise by applicable laws 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 Fonreach within 6 years otherwise by applicable laws of the Cessation Date require Fonreach and each Fonreach 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 Fonreach; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. Fonreach and each Fonreach Affiliate shall comply with any such written request within 6 years otherwise by applicable laws 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 Fonreach and each Fonreach 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.

  • Fonreach shall provide written certification to Company that it and each Fonreach Affiliate has fully complied with this section 10 within 6 years otherwise by applicable laws of the Cessation Date.

 

Audit rights

 

  • Subject to sections [11.2 to 11.4], Fonreach and each Fonreach 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 section 11.1 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).

  • [A Company Group Member may only mandate an auditor for the purposes of section 11.1 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. Fonreach shall not unreasonably withhold or delay agreement to the addition of a new auditor to that list.]

  • [Company or the relevant Company Affiliate undertaking an audit shall give Fonreach or the relevant Fonreach Affiliate reasonable notice of any audit or inspection to be conducted under section 11.1 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 Affiliate undertaking an audit has given notice to Fonreach or the relevant Fonreach Affiliate that this is the case before attendance outside those hours begins; or

    • For the purposes of more than [one] audit or inspection, in respect of each Contracted Processor, in any [calendar year], 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 Fonreach or the relevant Fonreach 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 Fonreach or the relevant Fonreach Affiliate of the audit or inspection.

 

Restricted Transfers

 

  • Subject to section 12.3, 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 section 12.1 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

  • Section 12.1 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.

 

General Terms

 

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

  • Nothing in this Addendum reduces Fonreach or any Fonreach Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Fonreach or any Fonreach 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 section 13.2, 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 may:

     

    • By at least [30 (thirty) calendar days’] written notice to Fonreach from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), 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

    • 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 section 13.4.1:

     

    • Fonreach and each Fonreach 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 and

    • Company shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Fonreach to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1 [and/or 13.5.1].

  • If Company gives notice under section 13.4.2, 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.

  • Neither Company nor Fonreach shall require the consent or approval of any Company Affiliate or Fonreach Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.

Severance

  • 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 (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.

 

ANNEXURE 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

 

This Annexure 1 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 Information as necessary to support the Company’s lawful business, and authorized by the Company.

 

The types of Company Personal Data to be Processed

 

Individual data as defined within the Company’s Fonreach application

 

The categories of Data Subject to whom the Company Personal Data relates

 

All individuals (“natural persons”) as defined within the Company’s Fonreach Application

 

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.