This Data Processing Agreement (“Agreement“) forms part of the Contract for Services (“Principal Agreement“) between
PRIVATE LIMITED COMPANY “INOXOFT OU”, legal entity, registered under the laws of Estonia at Harju maakond, Tallinn, Kesklinna linnaosa, Narva mnt 5, 10117, Estonia, identification number of the legal entity: 16492620 (the “Inoxoft” or “Data Controller”) and
__________________________________________________________________________ (“Data Processor”), (together as the “Parties”)
WHEREAS
(A) Inoxoft acts as a Data Controller.
(B) Inoxoft wishes to subcontract certain Services, which imply the processing of personal data (of Clients, visitors, etc.), to the Data Processor.
(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework concerning data processing and with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons concerning 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:
1. Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Inoxoft under or in connection with the Principal Agreement;
1.1.3 “Contracted Processor” means a Subprocessor;
1.1.4 “Client” means a client of Inoxoft OU, with whom MSA or other agreements were concluded.
1.1.5 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.6 “EEA” means the European Economic Area;
1.1.7 “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.8 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.9 “Data Transfer” means:
1.1.9.1 a transfer of Personal Data from Inoxoft to a Contracted Processor; or
1.1.9.2 an onward transfer of 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);
1.1.10 “Services” means the software development services or other services described in MSA and SOW between Client and Inoxoft OU, in MSA between Inoxoft and Contracted Processor.
1.1.11 “Subprocessor” means any person appointed by or on behalf of a Processor to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 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.
2. Processing of Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Personal Data; and
2.1.2 Not process Personal Data other than on the relevant documented instructions.
2.2 Inoxoft instructs the Processor to process Personal Data.
3. Processor Personnel
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 Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know/access the relevant Personal Data, as strictly necessary for the Principal Agreement, 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.
4. Security
4.1 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, the Processor shall concerning the 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.
4.2 In assessing the appropriate level of security, the Processor shall take into account in particular the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Subprocessing
5.1 Processor shall not appoint (or disclose any Personal Data to) any Subprocessor unless required or authorized by Inoxoft.
5.2 Subprocessor Requirements. Processor shall:
Inform Inoxoft in writing of any intended changes concerning the addition or replacement of subprocessors, providing Inoxoft the opportunity to object within 20 days.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, the Processor shall assist Inoxoft by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Inoxoft obligations, as reasonably understood by Inoxoft, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Inoxoft if it receives a request from a Data Subject under any Data Protection Law in respect of Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of Inoxoft or as required by Applicable Laws to which the Processor is subject, in which case the Processor shall to the extent permitted by Applicable Laws inform Inoxoft of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Processor shall notify Inoxoft without undue delay upon Processor becoming aware of a Personal Data Breach affecting Personal Data, providing Inoxoft with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall cooperate with Inoxoft and take reasonable commercial steps as directed by Inoxoft to assist in investigating, mitigating and remedying each such Personal Data Breach.
7.3 Notification Details. In case of a breach, Processor shall notify Inoxoft within 24 hours and provide:
Nature and cause of the breach
Categories and approximate number of affected Data Subjects
Details of steps taken or planned to address and mitigate the breach’s impact.
8. Data Protection Impact Assessment and Prior Consultation Processor shall provide reasonable assistance to Inoxoft with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Inoxoft 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 concerning Processing of Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Personal Data
9.1 Subject to this section 9 Processor shall promptly and in any event within
30 days from the date of the prior written notice of Inoxoft, delete and procure the deletion of all copies of those Personal Data unless otherwise specified in MSA or SOW.
10. Audit rights
10.1 Subject to this section 10, Processor shall make available to Inoxoft on request all information necessary to demonstrate compliance with this Agreement and shall allow for and contribute to audits, including inspections, by Inoxoft or an auditor mandated by Inoxoft concerning the Processing of the Personal Data by the Contracted Processors.
10.2 Information and audit rights of Inoxoft 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.
11. Data Transfer
11.1 Apart from Ukraine, 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 written consent of Inoxoft. 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.
12. General Terms
12.1 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:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
12.2 Notices. All notices and communications between Inoxoft and the Processor must be via email at dpo@inoxoft.com.
12.3 Amendments and Review. The Parties agree to review and, if necessary, amend this Agreement annually or upon significant changes to data protection laws.
13. Governing Law and Jurisdiction.
13.1 This Agreement is governed by the laws of Estonia.
13.2 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 Estonia.
IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below.
Inoxoft
Signature ______________________________
Name: Nazar Kvartalnyi
Title: Management Board member
Processor
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