Customer GDPR Data Processing Agreement
This Customer Data Processing Agreement reflects the requirements of the European Data Protection Regulation (“GDPR”) as it comes into effect on May 25, 2018. GEM Associates Ltd´s products and services offered in the European Union are GDPR ready and this DPA provides you with the necessary documentation of this readiness.
This Data Processing Agreement (“DPA”) is an addendum to the Customer Terms of Service (“Agreement”) between GEM Associates Ltd, (“GEM Associates”) and the Customer. All capitalised terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorised Affiliates (defined below).
The parties agree as follows:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Authorised Affiliate” means any of Customer Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Customer Data” means any data that GEM Associates and/or its Affiliates processes on behalf of Customer in the course of providing the Services under the Agreement.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“EU Data Protection Law” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
“Personal Data” means any Customer Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
“Privacy Shield” means the EU-US and Swiss-US Privacy Shield Frameworks, as administered by the U.S. Department of Commerce.
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of 12 July 2016 pursuant to the Directive, details of which can be found at www.privacyshield.gov/eu-us-framework.
“Processor” means an entity that processes Personal Data on behalf of the Controller.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.
“Security Incident” means any unauthorised or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Personal Data.
“Services” means any product or service provided by GEM Associatesto Customer pursuant to and as more particularly described in the Agreement.
“Sub-processor” means any Processor engaged by GEM Associatesor its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any GEM Associates Affiliate.
Scope and Applicability of this DPA
2.1 This DPA applies where and only to the extent that GEM Associates processes Personal Data on behalf of the Customer in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
2.2 Role of the Parties. As between GEM Associates and Customer, Customer is the Controller of Personal Data and GEM Associates shall process Personal Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent GEM Associates from using or sharing any data that GEM Associates would otherwise collect and process independently of Customer’s use of the Services.
2.3 Customer Obligations. Customer agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to GEM Associates; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for GEM Associates to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 GEM Associates Processing of Personal Data. As a Processor, GEM Associates shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Customer to the extent they are consistent with the terms of this Agreement and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to GEM Associates in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and GEM Associates.
2.5 Nature of the Data. GEM Associates handles Customer Data provided by Customer. Such Customer Data may contain special categories of data depending on how the Services are used by Customer. The Customer Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer; (ii) to provide customer and technical support to Customer; and (iii) disclosures as required by law or otherwise set forth in the Agreement.
2.6 GEM Associates Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that GEM Associates shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, GEM Associates is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Customer agrees that GEM Associates may engage Sub-processors to process Personal Data on Customer’s behalf. The Sub-processors currently engaged by GEM Associates and authorized by Customer are listed in Annex A.
3.2 Sub-processor Obligations. GEM Associates shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause GEM Associates to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. GEM Associates shall provide Customer reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.
3.4 Objection to Sub-processors. Customer may object in writing to GEM Associates’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying GEM Associates promptly in writing within five (5) calendar days of receipt of GEM Associates’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by GEM Associates without the use of the objected-to-new Sub-processor.
4.1 Security Measures. GEM Associates shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data, in accordance with GEM Associates’s security standards described in Annex B (“Security Measures”).
4.2 Confidentiality of Processing. GEM Associates shall ensure that any person who is authorized by GEM Associates to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.3 Security Incident Response. Upon becoming aware of a Security Incident, GEM Associates shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
4.4 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that GEM Associates may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
Security Reports and Audits
5.1 GEM Associates shall maintain records of its security standards. Upon Customer’s written request, GEM Associates shall provide (on a confidential basis) copies of relevant external ISMS certifications, audit report summaries and/or other documentation reasonably required by Customer to verify GEM Associates’s compliance with this DPA. GEM Associates shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that Customer (acting reasonably) considers necessary to confirm GEM Associates’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year.
6.1 Processing Locations. GEM Associates stores and processes EU Data (defined below) in data centers located inside and outside the European Union. All other Customer Data may be transferred and processed in the United States and anywhere in the world where Customer, its Affiliates and/or its Sub-processors maintain data processing operations. GEM Associates shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws.
6.2 Transfer Mechanism: Notwithstanding Section 6.1, to the extent GEM Associates processes or transfers (directly or via onward transfer) Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland (“EU Data”) in or to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, the parties agree that GEM Associates shall be deemed to provide appropriate safeguards for such data by virtue of having certified its compliance with the Privacy Shield and GEM Associates shall process such data in compliance with the Privacy Shield Principles. Customer hereby authorises any transfer of EU Data to, or access to EU Data from, such destinations outside the EU subject to any of these measures having been taken.
Return or Deletion of Data
7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent GEM Associates is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data GEM Associates shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8.1 To the extent that Customer is unable to independently access the relevant Personal Data within the Services, GEM Associates shall (at Customer’s expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organisational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to GEM Associates, GEM Associates shall not respond to such communication directly without Customer’s prior authorisation, unless legally compelled to do so. If GEM Associates is required to respond to such a request, GEM Associates shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
8.2 To the extent GEM Associates is required under Data Protection Law, GEM Associates shall (at Customer’s expense) provide reasonably requested information regarding GEM Associates’s processing of Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
9.2 This DPA is a part of and incorporated into the Agreement so references to “Agreement” in the Agreement shall include this DPA.
9.3 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.
9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
GEM Associates Ltd
Annex A – List of GEM Associates Sub-processors
Available upon request
Annex B – Security Measures
Available upon request