Capitalised words and phrases in this DPA have their meaning from the Dictionary unless the contrary intention appears.
Certain other words and phrases in this DPA have the following meaning:
Customer Personal Data means any Personal Data Processed by a Subprocessor on behalf of Customer pursuant to or in connection with the Agreement;
Controller means the Customer assuming the role of a controller in respect of the Services as that term is used under the GDPR;
Data Protection Laws means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country that apply to the Agreement;
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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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;
Services means the software implementation services in any agreement wherein the MST or SSA is incorporated by reference;
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;
Processor means Agilyx, assuming the role of a processor in respect of the Services as that term is used under the GDPR;
Standard Contractual Clauses means the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council;
UK GDPR means the retained EU law version of the EU General Data Protection Regulation 2016/679 by virtue of section 3 of the European Union (Withdrawl) Act 2018 and as amended by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419); and
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.
In this DPA, unless it is provided otherwise, the Rules of Interpretation apply.
The Agreement which this DPA forms part of incorporates the Agilyx General Terms of Business, they apply as though set out in full here.
The parties agree that this DPA replaces and supersedes any existing DPA the parties may have previously entered into in connection with the Services. If the terms of the Agreement are updated, then by agreeing to those updated terms, the Customer is also agreeing to incorporate the latest updated DPA into that Agreement.
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 will prevail to the extent of that conflict in connection with the processing of Customer Personal Data.
Notwithstanding anything to the contrary in the Agreement or this DPA, the liability of each party and each party’s Related Bodies Corporate under this DPA is subject to the exclusions and limitations of liability set out in the Agreement.
Any claims against Agilyx or its Related Bodies Corporate under this DPA can only be brought by the Customer entity that is a party to the Agreement against the Agilyx entity that is a party to the Agreement.
This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
This DPA and the Standard Contractual Clauses will terminate simultaneously and automatically upon deletion by Agilyx of the Customer Personal Data processed on behalf of the Customer.
Processor shall:
comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
not Process Customer Personal Data other than on the relevant Company’s documented instructions.
The Customer instructs Processor to process Customer Personal Data, according to its written instructions as provided during the course of the Services. The nature of the processing and the types of Personal Data processes are those required for the proper performance of the Services, as identified and instructed by the Customer from time to time.
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Subprocessor 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 Agreement, and to comply with applicable laws in the context of that individual’s duties to the Subprocessor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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.
Processor shall:
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 Subprocessor responds to the request.
Unless prohibited by Law, 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’s notification of or response to a Personal Data Breach in accordance with this clause will not be construed as an acknowledgment by Processor of any fault or liability with respect to the Personal Data Breach.
Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory 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 Subprocessors.
The Processor shall promptly and in any event within 40 Business Days of the date of cessation of any Services involving the Processing of Customer Personal Data, delete and procure the deletion of all copies of the Customer Personal Data.
Subject to the remainder of this ‘Audit Rights’ clause, Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for audits by a third-party auditor mutually agreed by Controller and Processor in relation to the Processing of the Customer Personal Data by the Subprocessors.
Information and audit rights of the Customer only arise under the above clause to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
The Processor may not transfer or authorize the transfer of Personal Data to countries outside the UK, EU, and/or the European Economic Area (EEA) except as provided by this clause. 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 is adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on the Standard Contractual Clauses for the transfer.
The Processor may transfer between Related Bodies Corporate of the international group of Agilyx entities. This may include transferring Personal Data to/from Australia, New Zealand, Ireland, Germany, Canada, United States, Singapore, and/or Malaysia, for the purposes of delivering the Services to the Customer and in accordance with its instructions.
