Data Protection Addendum

This current consolidated Data Protection Addendum was published on 01/03/2021

• Definitions
  • In this Data Protection Addendum defined terms shall have the same meaning, and the same rules of interpretation shall apply as in the remainder of our Agreement. In addition in this Data Protection Addendum the following definitions have the meanings given below:
  • Applicable Law
    • means applicable laws of the European Union (EU), the European Economic Area (EEA) or any of the EU or EEA’s member states from time to time together with applicable laws in Ireland from time to time;
  • Appropriate Safeguards
    • means such legally enforceable mechanism(s) for Transfers of Personal Data as may be permitted under Data Protection Laws from time to time;
  • Controller
    • has the meaning given to that term in Data Protection Laws;
  • Data Protection Laws
    • means all Applicable Laws relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including the following laws to the extent applicable in the circumstances:
      • the GDPR;
      • the Data Protection Acts 1988 to 2018;
      • any laws which implement any such laws; and
      • any laws which replace, extend, re-enact, consolidate or amend any of the foregoing);
    • Data Protection Losses
      • means all liabilities, including all:
        • costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and
        • to the extent permitted by Applicable Law:
          • administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
          • compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and
          • the reasonable costs of compliance with investigations by a Supervisory Authority;
        • Data Subject
          • has the meaning given to that term in Data Protection Laws;
        • Data Subject Request
          • means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
        • GDPR
          • means the General Data Protection Regulation, Regulation (EU) 2016/679;
        • International Recipient
          • means the organisations, bodies, persons and other recipients to which Transfers of the Protected Data are prohibited under paragraph 7.1 without the Customer’s prior written authorisation;
        • Irish Data Protection Laws
          • means Data Protection Laws that form part of the law of Ireland from time to time.
        • List of Sub-Processors
          • means the latest version of the list of Sub-Processors used by the Supplier, as Updated from time to time, which as at Order Acceptance is available upon email request;
        • Onward Transfer
          • means a Transfer from one International Recipient to another International Recipient;
        • Personal Data
          • has the meaning given to that term in Data Protection Laws;
        • Personal Data Breach
          • means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
        • processing
          • has the meanings given to that term in Data Protection Laws (and related terms such as process have corresponding meanings);
        • Processing Instructions
          • has the meaning given to that term in paragraph 3.1.1;
        • Processor
          • has the meaning given to that term in Data Protection Laws;
        • Protected Data
          • means Personal Data in the Customer Data;
        • Sub-Processor
          • means another Processor engaged by the Supplier for carrying out processing activities in respect of the Protected Data on behalf of the Customer;
        • Standard Contractual Clauses
        • means:

standard data protection clauses adopted by the Commission in accordance with the examination procedure referred to in Article 93(2) of GDPR; and/or

(b)          standard data protection clauses adopted by a Supervisory Authority and approved by the Commission pursuant to the examination procedure referred to in Article 93(2) of GDPR;

• Supervisory Authority
  • means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws;
• Transfer
  • bears the same meaning as the word ‘transfer’ in Article 44 of the GDPR (or to the extent wider the definition of ‘transfer’ in equivalent provisions of Irish Data Protection Laws). Without prejudice to the foregoing, this term also includes all Onward Transfers. Related expressions such as Transfers, Transferred and Transferring shall be construed accordingly; and
• Processor and Controller
  • The parties agree that, for the Protected Data, the Customer shall be the Controller and the Supplier shall be the Processor. Nothing in our Agreement relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
  • To the extent the Customer is not sole Controller of any Protected Data it warrants that it has full authority and authorisation of all relevant Controllers to instruct the Supplier to process the Protected Data in accordance with our Agreement.
  • The Supplier shall process Protected Data in compliance with:
    • the obligations of Processors under Data Protection Laws in respect of the performance of its and their obligations under our Agreement; and
    • the terms of our Agreement.
  • The Customer shall ensure that it, its Affiliates and each Customer Authorised User shall at all times comply with:
    • all Data Protection Laws in connection with the processing of Protected Data, the use of the Services (and each part) and the exercise and performance of its respective rights and obligations under our Agreement, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws; and
    • the terms of our Agreement.
  • The Customer warrants, represents and undertakes, that at all times:
    • all Protected Data (if processed in accordance with our Agreement) shall comply in all respects, including in terms of its collection, storage and processing, with Data Protection Laws;
    • fair processing and all other appropriate notices have been provided to the Data Subjects of the Protected Data (and all necessary consents from such Data Subjects obtained and at all times maintained) to the extent required by Data Protection Laws in connection with all processing activities in respect of the Protected Data which may be undertaken by the Supplier and its Sub-Processors in accordance with our Agreement;
    • the Protected Data is accurate and up to date;
    • it shall establish and maintain adequate security measures to safeguard the Protected Data in its possession or control (including from unauthorised or unlawful destruction, corruption, processing or disclosure) and maintain complete and accurate backups of all Protected Data provided to the Supplier (or anyone acting on its behalf) so as to be able to immediately recover and reconstitute such Protected Data in the event of loss, damage or corruption of such Protected Data by the Supplier or any other person;
    • all instructions given by it to the Supplier in respect of Personal Data shall at all times be in accordance with Data Protection Laws; and
    • it has undertaken due diligence in relation to the Supplier’s processing operations and commitments and it is satisfied (and all times it continues to use the Services remains satisfied) that:
      • the Supplier’s processing operations are suitable for the purposes for which the Customer proposes to use the Services and engage the Supplier to process the Protected Data;
      • the technical and organisational measures set out in the Information Security Addendum and our Agreement (each as Updated from time to time) shall (if the Supplier complies with its obligations under such Addendum) ensure a level of security appropriate to the risk in regards to the Protected Data; and
      • the Supplier has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Data Protection Laws.
    • Instructions and details of processing
      • Insofar as the Supplier processes Protected Data on behalf of the Customer, the Supplier:
        • unless required to do otherwise by Applicable Law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Customer’s documented instructions as set out in this paragraph 3.1 and paragraphs 3.3 and 3.4 (including when making a Transfer of Protected Data to any International Recipient), as Updated from time to time (Processing Instructions);
        • if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Customer of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and
        • shall promptly inform the Customer if the Supplier becomes aware of a Processing Instruction that, in the Supplier’s opinion, infringes Data Protection Laws, provided that:
          • this shall be without prejudice to paragraphs 2.4 and 2.5; and
          • to the maximum extent permitted by applicable law, the Supplier shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with the Customer’s Processing Instructions following the Customer’s receipt of the information required by this paragraph 3.1.3.
        • The Customer shall be responsible for ensuring all Authorised Affiliates’ and Customer Authorised User’s read and understand the Privacy Policy (as Updated from time to time).
        • The Customer acknowledges and agrees that the execution of any computer command to process (including deletion of) any Protected Data made in the use of any of the Subscribed Services by a Customer Authorised User will be a Processing Instruction (other than to the extent such command is not fulfilled due to technical, operational or other reasons, including as set out in the User Manual). The Customer shall ensure that Customer Authorised Users do not execute any such command unless authorised by the Customer (and by all other relevant Controller(s)) and acknowledges and accepts that if any Protected Data is deleted pursuant to any such command the Supplier is under no obligation to seek to restore it.
        • Subject to applicable Subscribed Service Specific Terms or the Order Form the processing of the Protected Data by the Supplier under our Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in the Schedule.
      • Technical and organisational measures
        • Taking into account the nature of the processing, the Supplier shall implement and maintain technical and organisational measures:
          • in relation to the processing of Protected Data by the Supplier, as set out the Information Security Addendum; and
          • subject to paragraph 6.1, to assist the Customer insofar as is possible (taking into account the nature of the processing) in the fulfilment of the Customer’s obligations to respond to Data Subject Requests relating to Protected Data, in each case at the Customer’s cost on a time and materials basis in accordance with the Supplier’s Standard Pricing Terms.
        • Using staff and other Processors
          • The Supplier shall not engage any Sub-Processor for carrying out any processing activities in respect of the Protected Data (except in accordance with our Agreement) without the Customer’s written authorisation of that specific Sub-Processor (such authorisation not to be unreasonably withheld, conditioned or delayed).
          • The Customer authorises the appointment of each of the Sub-Processors identified on the List of Sub-Processors as Updated from time to time.
          • The Supplier shall:
            • prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under paragraphs 2 to 12 (inclusive) (including those obligations relating to sufficient guarantees to implement appropriate technical and organisational measures); and
            • remain fully liable for all the acts and omissions of each Sub-Processor as if they were its own.
          • The Supplier shall ensure that all persons authorised by it (or by any Sub-Processor) to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law, in which case the Supplier shall, where practicable and not prohibited by Applicable Law, notify the Customer of any such requirement before such disclosure).
        • Assistance with compliance and Data Subject rights
          • The Supplier shall refer all Data Subject Requests it receives to the Customer without undue delay. The Customer shall pay the Supplier for all work, time, costs and expenses incurred in connection with such activity, calculated at the Supplier’s rates set out in the Supplier’s Standard Pricing Terms.
          • The Supplier shall provide such assistance as the Customer reasonably requires (taking into account the nature of processing and the information available to the Supplier) to the Customer in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to:
            • security of processing;
            • data protection impact assessments (as such term is defined in Data Protection Laws);
            • prior consultation with a Supervisory Authority regarding high risk processing; and
            • notifications to the Supervisory Authority and/or communications to Data Subjects by the Customer in response to any Personal Data Breach,
          • provided the Customer shall pay the Supplier for all work, time, costs and expenses incurred in connection with providing the assistance in this paragraph 6.2, calculated at the Supplier’s rates set out in the Supplier’s Standard Pricing Terms.
        • International data Transfers
          • Subject to paragraphs 7.2 and 7.5, the Supplier shall not Transfer any Protected Data:
            • from any country to any other country; and/or
            • to an organisation and/or its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries,
            • without the Customer’s prior written authorisation except where the Supplier is required to Transfer the Protected Data by Applicable Law (and shall inform the Customer of that legal requirement before the Transfer, unless those laws prevent it doing so).
          • The Customer hereby authorises the Supplier to Transfer any Protected Data for the purposes referred to in paragraph 3.4 to any International Recipient(s), provided all Transfers by the Supplier of Protected Data to an International Recipient (and any Onward Transfer) shall be (to the extent required under Data Protection Laws) effected by way of Appropriate Safeguards and in accordance with Data Protection Laws and our Agreement. The provisions of our Agreement (including this Data Protection Addendum) shall constitute the Customer’s instructions with respect to Transfers in accordance with paragraph 3.1.1.

7.3           The Appropriate Safeguards employed by the Supplier in connection with our Agreement shall be the Standard Contractual Clauses and the Customer shall promptly execute any Standard Contractual Clauses (or other documents) that the Supplier considers necessary or desirable from time to time and if the Customer fails to do so, the Supplier will have no obligation to provide the Services to the extent any such execution is not forthcoming.

7.4           The Supplier (or its Sub-Processors) may only process Protected Data in the locations specified within the Proposal document.

7.5           The Customer acknowledges that due to the nature of cloud services, the Protected Data may be Transferred to other geographical locations in connection with use of the Service further to access and/or computerised instructions initiated by Authorised Users. The Customer acknowledges that the Supplier does not control such processing and the Customer shall ensure that Customer Authorised Users (and all others acting on its behalf) only initiate the Transfer of Protected Data to other geographical locations if Appropriate Safeguards are in place and that such Transfer is in compliance with all Applicable Laws.

• Information and audit
  • The Supplier shall maintain, in accordance with Data Protection Laws binding on the Supplier, written records of all categories of processing activities carried out on behalf of the Customer.
  • On request, the Supplier shall provide the Customer (or auditors mandated by the Customer) with a copy of the third party certifications and audits to the extent made generally available to its customers. Such information shall be confidential to the Supplier and shall be Supplier’s Confidential Information as defined in our Agreement, and shall be treated in accordance with applicable terms.
• Breach notification
  • In respect of any Personal Data Breach involving Protected Data, the Supplier shall, without undue delay (and in any event within 72 hours):
    • notify the Customer of the Personal Data Breach; and
    • provide the Customer with details of the Personal Data Breach.
  • Deletion of Protected Data and copies
  • Following the end of the provision of the Services (or any part) relating to the processing of Protected Data the Supplier shall dispose of Protected Data in accordance with its obligations under our Agreement. The Supplier shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Protected Data undertaken in accordance with our Agreement.
  • Compensation and claims
    • The Supplier shall be liable for Data Protection Losses (howsoever arising, whether in contract, tort (including negligence) or otherwise) under or in connection with our Agreement:
      • only to the extent caused by the processing of Protected Data under our Agreement and directly resulting from the Supplier’s breach of our Agreement; and
      • in no circumstances to the extent that any Data Protection Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of our Agreement by the Customer (including in accordance with paragraph 3.1.3(b)).
    • If a party receives a compensation claim from a person relating to processing of Protected Data in connection with our Agreement or the Services, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall:
      • make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed); and
      • consult fully with the other party in relation to any such action but the terms of any settlement or compromise of the claim will be exclusively the decision of the party that is responsible under our Agreement for paying the compensation.
    • The parties agree that the Customer shall not be entitled to claim back from the Supplier any part of any compensation paid by the Customer in respect of such damage to the extent that the Customer is liable to indemnify or otherwise compensate the Supplier in accordance with our Agreement.
    • This paragraph 11 is intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Protection Laws to the contrary, except:
      • to the extent not permitted by Applicable Law (including Data Protection Laws); and
      • that it does not affect the liability of either party to any Data Subject.
    • Survival
    • This Data Protection Addendum (as Updated from time to time) shall survive termination (for any reason) or expiry of our Agreement and continue until no Protected Data remains in the possession or control of the Supplier or any Sub-Processor, except that paragraphs 10 to 12 (inclusive) shall continue indefinitely.
    • Data protection contact
    • Jack Dinneen, our SaaS Operations Manager is our data protection contact. For any data protection related queries, he can be contacted at the below email:
    • jackdinneen@i3pt.co.uk