📝Data Processing Agreement
DATA PROCESSING AGREEMENT
This Data Processing Agreement ("Agreement") is entered between FL3XX GmbH, an Austrian company with offices at Kolingasse 11, 1090 Vienna, Austria (“FL3XX”) and the entity agreeing to these terms (“the Company”), as defined in the signature block at the end of this document, (together as “the Parties”).
WHEREAS
(A) FL3XX acts as a data controller and/or a data processor for a third party (the Competent Data Controller).
(B) FL3XX wishes to subcontract certain services, which imply the
processing of personal data, to the Company.
(C) 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
Definitions and Interpretation
Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
"Agreement" means this Data Processing Agreement and all schedules;
“FL3XX Personal Data" means any Personal Data processed by a Contracted Processor on behalf of FL3XX pursuant to or in connection with the FL3XX Partner Program Agreement;
"Contracted Processor" means 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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;
"Data Transfer" means:
a transfer of FL3XX Personal Data from FL3XX to a Contracted Processor; or
an onward transfer of FL3XX Personal Data from a Contracted Processor to a Subcontracted 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);
"Services" means all the services, which FL3XX provides.
"Subprocessor" means any person appointed by or on behalf of the Company to process Personal Data on behalf of FL3XX in connection with the Agreement.
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.
Processing of FL3XX Personal Data
Company shall: comply with all applicable Data Protection Laws in the Processing of FL3XX Personal Data; and
not Process FL3XX Personal Data other than on the relevant and documented instructions. FL3XX instructs the Company to process FL3XX Personal Data.
Company Personnel
Company shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the FL3XX Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant FL3XX Personal Data, as strictly necessary for the purposes of the Data Processing, 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, Company shall in relation to the FL3XX 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, the Company shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Subprocessing
The Company shall not appoint (or disclose any FL3XX Personal Data to) any Subprocessor unless required or authorized by FL3XX, or the Competent Data Controller.
Data Subject Rights
Taking into account the nature of the Processing, the Company shall assist FL3XX by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of FL3XX’s obligations, as reasonably understood by FL3XX, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
The Company shall:
promptly notify FL3XX if it receives a request from a Data Subject under any Data Protection Law in respect of FL3XX Personal Data; and
ensure that it does not respond to that request except on the documented instructions of FL3XX or as required by Applicable Laws to which the Company is subject, in which case the Company shall to the extent permitted by Applicable Laws inform FL3XX of that legal requirement before the Company responds to the request.
Personal Data Breach
The Company shall notify FL3XX without undue delay upon becoming aware of a Personal Data Breach affecting FL3XX Personal Data, providing FL3XX with sufficient information to allow FL3XX to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
The Company shall cooperate with FL3XX and take reasonable commercial steps as directed by FL3XX to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
The Company shall provide reasonable assistance to FL3XX with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which FL3XX 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 FL3XX Personal Data by, and taking into account the nature of the Processing and information available to, the Company.
Deletion or Return of FL3XX Personal Data
Subject to this section 9 the Company shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of FL3XX Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those FL3XX Personal Data.
The Company shall provide written certification to FL3XX that it has fully complied with this section 9 within 10 business days of the Cessation Date.
Audit Rights
Subject to this section 10, the Company shall make available to FL3XX on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by FL3XX or an auditor mandated by FL3XX in relation to the Processing of the FL3XX Personal Data by the Company.
Information and audit rights of FL3XX only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
Data Transfer
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.
General Terms
Confidentiality. Each Party must keep this Agreement and 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:
disclosure is required by law;
the relevant information is already in the public domain.
Governing Law and Jurisdiction
This Agreement is governed by the laws of Austria.
Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Austria, subject to possible appeal to the European Court of Justice.
IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below.
Updated about 1 month ago