Between
Recitals
A. AMIGO Technology and the Client entered into a proposal under which AMIGO Technology agreed to develop and implement a user experience for the Client’s website (the “Proposal”). The Proposal is governed by AMIGO Technology’s Terms and Conditions of Business (the “Terms”) (the Proposal and the Terms are together the “Master Agreement”). As part of those services, AMIGO Technology will process Personal Data on behalf of the Client.
B. This Data Processing Agreement (Agreement) sets out the additional terms, requirements and conditions on which AMIGO Technology will process Personal Data when providing services under the Master Agreement.
It is hereby agreed
The following definitions and rules of interpretation apply in this Agreement.
1.1. Definitions:
“Business Purposes”
means the services described in the Master Agreement.
“Data Subject”
means an individual who is the subject of Personal Data.
“Personal Data”
means any information relating to an identified or identifiable natural person that is processed by AMIGO Technology as a result of, or in connection with, the provision of the services under the Proposal; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Processing, processes and process”
means either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.
“Data Protection Legislation”
means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) as amended.
“Personal Data Breach”
means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
1.2. This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. 1.3. In the case of conflict or ambiguity between any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail.
2.1. This Agreement shall be binding upon the parties upon signature of the Proposal or upon commencement of the services under the Master Agreement (whichever is earlier).
3.1. The Client and AMIGO Technology acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and AMIGO Technology is the processor. 3.2. The Client retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider. 3.3. The Proposal describes the subject matter, duration, nature and purpose of processing, the Personal Data categories and Data Subject types in respect of which AMIGO Technology may process to fulfil the Business Purposes of the Master Agreement.
4.1. AMIGO Technology will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Client’s written instructions. AMIGO Technology will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. AMIGO Technology must promptly notify the Client if, in its opinion, the Client’s instruction would not comply with the Data Protection Legislation. 4.2. AMIGO Technology must promptly comply with any Client request or instruction requiring AMIGO Technology to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing. 4.3. AMIGO Technology will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Client or this Agreement specifically authorises the disclosure, or as required by law. 4.4. AMIGO Technology will assist the Client with meeting the Client’s compliance obligations under the Data Protection Legislation, taking into account the nature of AMIGO Technology’s processing and the information available to AMIGO Technology, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
5.1. AMIGO Technology shall ensure that all persons authorised by AMIGO Technology to process the Personal Data are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data.
6.1. 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, AMIGO Technology shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including:
6.1.1. the pseudonymisation and encryption of personal data; 6.1.2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; 6.1.3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and 6.1.4. a process for regularly testing, assessing and evaluating the effectiveness of security measures.
7.1. AMIGO Technology will promptly and without undue delay notify the Client if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. AMIGO Technology will use reasonable endeavours to restore such Personal Data at its own expense. 7.2. AMIGO Technology will promptly and without undue delay notify the Client if it becomes aware of:
7.2.1. any accidental, unauthorised or unlawful processing of the Personal Data; or 7.2.2. any Personal Data Breach.
7.3. Where AMIGO Technology becomes aware of any matter within the scope of clause 7.2, it shall, without undue delay, also provide the Client with the following information:
7.3.1. a description of the nature of the matter, including the categories and approximate number of both Data Subjects and Personal Data records concerned; 7.3.2. the likely consequences; and 7.3.3. a description of the measures taken, or proposed to be taken to address the matter, including measures to mitigate its possible adverse effects.
7.4. Promptly following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. AMIGO Technology will reasonably co-operate with the Client in the Client’s handling of the matter. 7.5. AMIGO Technology shall not inform any third party of any Personal Data Breach without first obtaining the Client’s prior written consent, except when required to do so by law.
8.1. Where AMIGO Technology transfers Personal Data outside the United Kingdom and / or the European Economic Area, AMIGO Technology shall ensure the transfer complies with Data Protection Legislation.
9.1. AMIGO Technology may only authorise a third party (subcontractor) to process the Personal Data if:
9.1.1. the Client provides specific or general written authorisation to the appointment of the subcontractor. In the case of general authorisation, AMIGO Technology shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes; 9.1.2. AMIGO Technology enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures; and 9.1.3. the subcontractor’s contract terminates automatically on termination of this Agreement for any reason.
9.2. Where the subcontractor fails to fulfil its obligations under such written agreement, AMIGO Technology remains fully liable to the Client for the subcontractor’s performance of its obligations.
10.1. AMIGO Technology shall take such technical and organisational measures as may be appropriate, and promptly provide such information to the Client as the Client may reasonably require, to enable the Client to comply with:
10.1.1. the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and 10.1.2. information or assessment notices served on the Client by any supervisory authority under the Data Protection Legislation.
10.2. AMIGO Technology shall notify the Client promptly if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Legislation. 10.3. AMIGO Technology shall notify the Client within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation. 10.4. AMIGO Technology shall give the Client its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request. 10.5. AMIGO Technology must not disclose the Personal Data to any Data Subject or to a third party other than at the Client’s written request or instruction, as provided for in this Agreement or as required by law.
11.1. This Agreement will remain in full force and effect so long as the Master Agreement remains in effect or AMIGO Technology retains any Personal Data related to the Master Agreement in its possession or control.
12.1. On termination of the Master Agreement for any reason or expiry of its term, AMIGO Technology will securely delete or destroy or, if directed in writing by the Client, return and not retain, all or any Personal Data related to this Agreement in its possession or control. 12.2. If any law, regulation, or government or regulatory body requires AMIGO Technology to retain any documents or materials that AMIGO Technology would otherwise be required to return or destroy, it will notify the Client in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
13.1. AMIGO Technology shall provide the Client with all information reasonably requested by the Client to demonstrate compliance with this Agreement. AMIGO Technology shall permit the Client and its third-party representatives to audit AMIGO Technology’s compliance with this Agreement, on at least 7 days’ notice, during the term of this Agreement. AMIGO Technology will give the Client and its third-party representatives all necessary assistance to conduct such audits.
Definitions
For the purposes of the Clauses:
(a)
‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in the GDPR or the applicable data protection law;
(b) “GDPR” means EU General Data Protection Regulation 2016/679 of the European Parliament and 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;
(c) ‘the data exporter’ means the controller who transfers the personal data;
(d)
‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 45(3) of the GDPR;
(e)
‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(f)
‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(g)
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1.
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2.
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.
The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a)
that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b)
that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c)
that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d)
that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e)
that it will ensure compliance with the security measures;
(f)
that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of the GDPR or applicable data protection law;
(g)
to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h)
to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i)
that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j)
that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a)
to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b)
that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c)
that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d)
that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e)
to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f)
at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g)
to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h)
that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i)
that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j)
to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Liability
1.
The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2.
If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3.
If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1.
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2.
The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1.
The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Sub-processing
1.
The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2.
The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3.
The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4.
The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
1.
The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2.
The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
The data exporter, the Client named in the Proposal, will receive technology services from the data importer to allow the data exporter to quickly implement new user experiences across its’ existing technology infrastructure.
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
The data importer, AMIGO Technology Ltd, provides technology solutions to allow its customers to quickly implement new user experiences across its’ customers’ existing technology infrastructure.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
The data subjects are set out in the Proposal.
Categories of data
The personal data transferred concern the following categories of data (please specify):
The categories of data are set out in the Proposal.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The special categories of data are set out in the Proposal (if any)
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing operations are set out in the Proposal.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(c) and 5(c): AMIGO Technology Ltd intends to remain ISO 27001:2013 certified, stay compliant with ISO 27701:2019 and ensure our Organisational Information Security Policy and GDPR regulations are adhered to.