This Data Processing Agreement ("Agreement") forms part of the Terms and Conditions or other written or electronic agreement for Services between Nexudus Limited ("The Provider") and the “Customer” that wishes to be granted access to Nexudus Services ("The Platform") and to receive the Support Services according to the general Terms and Conditions of the Platform ("Principal Agreement").
(A) The Customer acts as a Data Controller.
(B) The Customer wishes to be granted access to Nexudus Services ("The Platform") and to receive the Support Services, which imply the processing of personal data, to Nexudus Limited, acting as a Data Processor (the "Processor").
(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
"Agreement" means this Data Processing Agreement and all Schedules;
"Customer Data" Any data inputted by the CUSTOMER or the PROVIDER on the CUSTOMER's behalf for the purpose of using THE PLATFORM or facilitating the CUSTOMER's use of THE PLATFORM
"Customer Personal Data" means any Personal Data Processed by a Contracted Processor on Controller's behalf pursuant to or in connection with the Principal 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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 Customer Personal Data from the Customer to a Contracted Processor; or
- an onward transfer of Customer 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 the software as a service Nexudus (the “Platform”) and the Support Services provided by Nexudus Limited.
"Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Customer 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.
Processor shall comply with all applicable Data Protection Laws in the Processing of Customer Personal Data.
The Customer instructs or requires Processor to process Customer Personal Data.
Controller ("The Customer") Responsibility:
Within the scope of the Agreement and in its use of Nexudus Services ("The Platform"), Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data.
Controller shall inform Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor.
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, Processor shall in relation to the Customer Personal Data implement appropriate technical and organisational 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, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Processor shall not appoint (or disclose any Customer Personal Data to) any Subprocessor unless required or authorised by the Customer or the Customer or an Authorised User enabling that option on The Platform.
Taking into account the nature of the Processing, Processor shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- Promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
- Ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws
- Inform Customer of that legal requirement before the Contracted Processor responds to the request.
Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Processor shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer 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 Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Customer Personal Data from the live/production environment of The Platform.
Processor shall provide written certification via email to Customer that it has fully complied with this section 9 within 10 business days of the Cessation Date.
The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior consent of the Customer or an authorised user or by enabling that option on The Platform by the Customer or an authorised user. 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.
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 consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
Notices. All notices and communications given under this Agreement must be in writing and will be sent by email address to the Provider's email address [legal[at]nexudus.com] or the email address provided by the Customer at such other address as notified from time to time by the Parties changing address.
This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
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 England and Wales.
Description of the data processing carried out on behalf of the Controller
In addition to the information provided elsewhere in the Agreement, the Parties wish to document the following information in relation to the data processing activities.