Effective: January 1, 2020
This Data Processing Agreement ("Agreement") forms part of the Customer Terms of Service (the "Principal Agreement"). This Agreement is an amendment to the Principal Agreement and is effective upon its incorporation to the Principal Agreement, which incorporation may be specified in the Principal Agreement or an executed amendment to the Principal Agreement. Upon its incorporation into the Principal Agreement, this Agreement will form a part of the Principal Agreement.
The term of this Agreement shall follow the term of the Principal Agreement. Terms not defined herein shall have the meaning as set forth in the Principal Agreement.
● Your company acts as a Data Controller (the "Controller").● Your company wishes to subcontract certain Services, which imply the processing of personal data, to Paser, acting as a Data Processor (the "Processor").● 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).● The Parties wish to lay down their rights and obligations.
It is agreed as follows:
1. Definitions and Interpretation.
a. 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.
a. Processor shall comply with all applicable Data Protection Laws in the Processing of Company Personal Data;b. Customer shall, in its use of the Subscription Services, Process Personal Data in accordance with the requirements of the Agreement and all Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
3. Processor Personnel.
a. Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to 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.
a. Paser shall maintain appropriate technical and organizational measures for the protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data. Paser regularly monitors compliance with these measures. Paser will not materially decrease the overall security of the Subscription Services during a subscription term.
a. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Paser’s Affiliates may be retained as Sub-processors; and (b) Paser and Paser’s Affiliates, respectively, may engage third-party Sub-processors in connection with the provision of the Subscription Services. Paser or its Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the services provided by such Sub-processor. A list of approved Sub-processors as of the Effective Date of this DPA is located at this link (the “Sub-processor List”). Customer may subscribe to receive update alerts when changes are made to the Sub-processor List. Paser will inform Customer of any new Sub-processor engaged during the term of the Subscription Agreement by updating the Sub-processor List. b. Objection Right for New Sub-processors. If Customer can reasonably show that the appointment of a new Sub-processor will have a material adverse effect on Paser’s ability to comply with applicable Data Protection Laws and Regulations, then Customer must promptly notify Paser in writing within fifteen (15) business days thereafter of its reasonable basis for objection to the use of a new Sub-processor. Upon receipt of Customer’s written objection, Customer and Paser will work together without unreasonable delay to recommend an alternative arrangement. If the following conditions apply: a) a mutually acceptable and reasonable alternative arrangement is not found; b) Customer has a termination right under applicable Data Protection Laws and Regulations, and c) Customer has provided prompt written notice under this Section, then Customer may terminate the Subscription Agreement only with respect to those services that cannot be provided by Paser without the use of the new Sub-processor. Unless prohibited by applicable Data Protection Laws and Regulations, in the event of such early termination by Customer, Paser can retain or require payment for Services through the end of Customer’s current contract term for the terminated services.]c. Liability. Paser shall be liable for the acts and omissions of its Sub-processors to the same extent Paser would be liable if performing the Subscription Services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
6. Data Subject Rights.
a. Taking into account the nature of the Processing, Processor shall assist Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Controller obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under the Data Protection Laws.b. Processor shall: i. promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and ii. ensure that it does not respond to that request except on the documented instructions of Controller 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 Controller of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
a. Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.b. Processor shall co-operate with Controller and take reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation.
a. Processor shall provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller 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.
a. Upon termination or expiration of the Agreement or at any time at Customer’s written request, Paser shall: return to Customer or destroy all Personal Data, except as otherwise permitted by applicable Data Protection Laws and Regulations.
10. Data Transfer.
a. If personal data processed under this 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.
11. Limitation of liability.
Notwithstanding anything contained in this DPA to the contrary, Customer’s remedies and Paser’s and its Affiliates’ obligations, with respect to breach of this DPA or a Personal Data Breach directly caused by Paser and the overall liability of Paser arising out of, or in connection with such breach will be subject to the aggregate limitations of liability under Section 9 of the Agreement (the “Liability Cap”). FOR THE AVOIDANCE OF DOUBT, THE PARTIES INTEND AND AGREE THAT THE OVERALL AGGREGATE LIABILITY OF PASER AND ITS AFFILIATES ARISING OUT OF, OR IN CONNECTION WITH, PASER’S BREACH OF THIS DPA SHALL IN NO EVENT EXCEED THE LIABILITY CAP.
12. General Terms.
a. Confidentiality. Each Party must keep any information it receives about the other Party and its business in connection with this 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: i. disclosure is required by law; ii. the relevant information is already in the public domain.b. Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. Controller shall be notified by an email sent to the address related to its use of the Service under the Principal Agreement. Processor shall be notified by an email sent to the address: .oi.resap%40opd