This Data Processing Agreement reflects the requirements of the European Data Protection Regulation (“GDPR”) as it comes into effect on May 25, 2018. Datamatics’ 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”) covers the processing of personal data by Datamatics Business Solutions Limited and its affiliates. Datamatics is committed to protecting the personal information whilst striving to provide the efficient business experience to its clients. Datamatics Business Solutions Limited and its affiliates each individually referred to as “Datamatics”, “we” or “us”.
Under the GDPR and related laws, we have a legal duty to protect the personal information we collect on instructions of our client (“Customer” or “Data Controller”).
This DPA is an addendum to the Customer Terms of Services or other written or electronic agreement including Job cards/Master Service Agreement/Statement of work (“Agreement”) between Datamatics and the Customer. This DPA shall constitute an integral part of the Agreement, executed in any form, whether electronically or by writing, between Datamatics and Customer for the performance of the services by Datamatics in terms of the Agreement (“Services”) the ambit of which sets out the understanding between the parties with respect to processing of Personal Data.
All capitalized 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 Authorized Affiliates (defined below).
For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates.
Schedule 1 to this DPA sets out certain information regarding the processing of Personal Data as required by GDPR. Customer may make reasonable amendments to Schedule 1 by written notice to Datamatics from time to time, as Customer reasonably considers necessary to meet those requirements.
In the course of providing services to Customer pursuant to the Agreement, Datamatics may Process Personal Data on behalf of Customer and such Personal Data is subject to Data Protection Laws and Regulations. The parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
HOW THIS DPA APPLIES
If the Customer entity signing the Agreement is a party to the DPA, this DPA is an addendum to and forms part of the Agreement. In such case, the Datamatics entity that is party to the Agreement is party to this DPA.
If the Customer entity has executed an Order Form or Statement of Work with Datamatics pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form or Statement of Work, as the case may be, and applicable to the renewal of such Order Form or Statement of Work, as the case may be, and the Datamatics entity that is party to such Order Form or Statement of Work is party to this DPA.
This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in the Agreement (including any existing data processing addendum to the Agreement). In the event of any clash or inconsistency between the Agreement and this DPA, this DPA shall prevail.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Customer Data” means what is defined in the Agreement as “Customer Data”
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means 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).
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Datamatics Group” means Datamatics and its Affiliates engaged in the Processing of Personal Data.
“Sub-processor” means any Processor engaged by Datamatics or a member of the Datamatics Group.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
- BUSINESS PRACTICES AND ETHICS
- Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Datamatics is the Processor and that Datamatics or members of the Datamatics Group will engage Sub-processors pursuant to the requirements set forth in Section 2 “Sub-processors” below.
- Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of 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.
- Datamatics’ Processing of Personal Data. Datamatics shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Statement of Work/Job Cards/Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
- Details of the Processing. To the extent necessary to perform the Services pursuant to the Agreement, Datamatics shall process Personal Data. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Details of the Processing) to this DPA.
- RIGHTS OF DATA SUBJECTS
- Data Subject Request. Datamatics shall, to the extent legally permitted, as promptly as is reasonably practicable, notify Customer if Datamatics receives a request in relation to the Personal Data from a Data Subject seeking to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Datamatics shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations in accordance with the timelines specified in the GDPR. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Datamatics shall, upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Datamatics is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations in accordance with the timelines specified in the GDPR. To the extent legally permitted, Customer shall be responsible for any costs arising from Datamatics’ provision of such assistance.
- DATAMATICS PERSONNEL
- Confidentiality. Datamatics shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements.
- Reliability. Datamatics shall take commercially reasonable steps to ensure the reliability of any Datamatics personnel engaged in the Processing of Personal Data.
- Limitation of Access. Datamatics shall ensure that Datamatics’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
- Data Protection Officer. Members of the Datamatics Group have appointed a data protection officer. The appointed person may be reached at email@example.com.
- Appointment of Sub-processors. Customer acknowledges and agrees that (a) Datamatics’ Affiliates may be retained as Sub-processors; and (b) Datamatics and Datamatics’ Affiliates respectively may engage the third-party Sub-processors in connection with the provision of the Services. Datamatics or a Datamatics 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 Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
- List of Current Sub-processors and Notification of New Sub-processors. Datamatics shall make available to the Customer the current list of Sub-processors for the Services. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Sub processor Lists”). New Sub-processors may be appointed in accordance with Section 5.3.
- Objection Right for New Sub-processors. Datamatics shall be entitled to change the Sub-processor at any time, subject to giving the Customer  business days’ prior written notice and obtaining the customer’s written consent, such consent not to be unreasonably withheld or delayed. Customer may object to Datamatics’ use of a new Sub-processor by notifying Datamatics promptly in writing within ten (10) business days after receipt of Datamatics’ notice under this Section 5.3. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, Datamatics will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If DATAMATICS is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by Datamatics without the use of the objected-to new Sub-processor by providing written notice to Datamatics. Datamatics will refund Customer any prepaid fees covering the remainder of the term of such Agreement following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
- Liability. Datamatics shall be liable for the acts and omissions of its Sub-processors to the same extent Datamatics would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement. For the sake of clarification, Datamatics shall not be liable on account of data leak by any third party who is not a party to this DPA and/or Datamatics-Sub-processor data processing agreement.
- Controls for the Protection of Customer Data. Datamatics shall maintain appropriate technical and organizational measures for 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. Datamatics regularly monitors compliance with these measures. In doing so, Datamatics shall be entitled to take into account:
- the nature, scope context and purposes of processing;
- the state of the art and costs of implementation; and
- the risk, likelihood and severity posed to the rights and freedoms of individuals.
- Third-Party Certifications and Audits. Datamatics has obtained the third-party certifications and audits. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Datamatics shall make available to Customer that is not a competitor of Datamatics (or Customer’s independent, third-party auditor that is not a competitor of Datamatics) a copy of Datamatics’ then most recent third-party audits or certifications, as applicable.
- CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
- Datamatics maintains security incident management policies and procedures and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Datamatics or its Sub-processors of which Datamatics becomes aware (a “Customer Data Incident”). Datamatics shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Datamatics deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Datamatics’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.
- RETURN AND DELETION OF CUSTOMER DATA
- Datamatics shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes as per the mutually agreed process and timelines.
- AUTHORIZED AFFILIATES
- Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Datamatics and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
- Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Datamatics under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
- Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with Datamatics, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
- Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Datamatics directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 9.3.2, below).
- The parties agree that the Customer that is the contracting party to the Agreement shall, subject to providing reasonable prior written notice of no less than 10 business days, be entitled to carry out an on-site audit at the relevant Datamatics site of the procedures and/or documentation relevant to demonstrating the protection of Personal Data under GDPR provided that Customer shall not exercise audit right more than once per year. In carrying out such an audit, the Customer shall take all reasonable measures to limit any impact on Datamatics and its Sub-Processors by combining, to the extent reasonable possible, several audit requests carried out on behalf of different Authorized Affiliates into one single audit. Datamatics may charge a reasonable fee to the Customer for enabling inspections.
- LIMITATION OF LIABILITY
- Datamatics’ and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates of the Customer and Datamatics, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, Datamatics’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules. For the sake of clarification, Datamatics shall not be liable for any damages/claims/liability arising on account of data leak caused by any third party who is not a party to this Data Processing Addendum and/or the Datamatics-Sub-processer Data processing agreement.
- EUROPEAN SPECIFIC PROVISIONS
- GDPR. With effect from 25 May 2018, DATAMATICS will Process Personal Data in accordance with the GDPR requirements directly applicable to Datamatics’ provision of its Services.
- Assistance to Customer to comply with the GDPR. With effect from 25 May 2018, upon Customer’s request, Datamatics shall provide Customer with reasonable cooperation and assistance needed to help fulfil Customer’s obligation under the GDPR, taking into account Datamatics’ processing of Personal Data and the information available to it. Datamatics shall be entitled to charge a reasonable fee for such assistance, based on its then current standard rates.
- POLICY CHANGES
- GOVERNING LAW
- GENERAL PROVISIONS
- The legal entity agreeing to this DPA as Data Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Data Controller.
- Should any provision of this DPA be invalid or unenforceable, the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amend as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) constructed in a manner as if the invalid or unenforceable part had never been contained therein.
SCHEDULE 1 – DETAILS OF THE PROCESSING
Nature and Purpose of Processing
Datamatics will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
Duration of Processing
Subject to Section 8 of the DPA, Datamatics will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the categories of data subjects as referred to in the Agreement.
Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the categories of Personal Data as referred to in the Agreement.