Data Processing Addendum
This Data Processing Addendum (the Addendum) forms part of the PortoSpire Terms of Use (and any ancillary or related documentation), as updated or amended from time to time (the Agreement), between you, the Subscriber (as defined below) and PortoSpire. All capitalised terms not defined in this Addendum have the meaning set out in the Agreement.
This addendum only applies if and to the extent PortoSpire processes personal data on behalf of a Subscriber that qualifies as a controller with respect to that personal data under Applicable Data Protection Law (as defined below). If the Subscriber had entered into earlier data processing terms with PortoSpire, those terms are replaced by this Addendum.
Definitions
In this Addendum, the following terms have the following meanings:
- controller, processor, data subject, personal data, processing (and process) and special categories of personal data have the meanings given in Applicable Data Protection Law
- Applicable Data Protection Law means the EU General Data Protection Regulation (Regulation 2016/679) (the GDPR) and any applicable national laws made under the GDPR
- "Processor" refers to PortoSpire and acts as a Data Controller
- Subscriber has the same meaning as ‘you’ in the PortoSpire Terms of Service
- “Agreement” means this Data Processing Agreement and all Schedules;
- “Subscriber Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Subscriber 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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 Subscriber Personal Data from the Subscriber to a Contracted Processor; or
- an onward transfer of Subscriber 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 services the Subscriber provides.
- “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company 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 Subscriber Personal Data
Processor shall:
- comply with all applicable Data Protection Laws in the Processing of Subscriber Personal Data; and
- not Process Subscriber Personal Data other than on the relevant Subscriber’s documented instructions.
Subscriber instructs Processor to process Subscriber Personal Data.
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 Subscriber Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Subscriber 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, 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, Processor shall in relation to the Subscriber 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, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Subprocessing
The Subscriber consents to Processor engaging third-party subprocessors to process the Data for the Permitted Purpose provided that:
- Processor maintains an up-to-date list of its Subprocessors, which is available on its website at the third party data page, which it will update with details of any change in subprocessors at least 30 days prior to the change; and
- Processor imposes data protection terms on any Subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law;
Data Subject Rights
Taking into account the nature of the Processing, Processor shall assist the Subscriber by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Subscriber obligations, as reasonably understood by Subscriber, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
Processor shall:
- promptly notify Subscriber if it receives a request from a Data Subject under any Data Protection Law in respect of Subscriber Personal Data; and
- ensure that it does not respond to that request except on the documented instructions of Subscriber 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 Subscriber of that legal requirement before the Contracted Processor responds to the request.
Personal Data Breach
Processor shall notify Subscriber without undue delay upon Processor becoming aware of a Personal Data Breach affecting Subscriber Personal Data, providing Subscriber with sufficient information to allow the Subscriber 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 Subscriber and take reasonable commercial steps as are directed by Subscriber to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to the Subscriber with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Subscriber 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 Subscriber Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Deletion or return of Company Personal Data
Subject to this section, Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Subscriber Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Subscriber Personal Data.
Audit rights
Subject to this section, Processor shall make available to the Subscriber on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Subscriber or an auditor mandated by the Subscriber in relation to the Processing of the Subscriber Personal Data by the Contracted Processors.
Information and audit rights of the Subscriber only arise under the above section 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.
Notices
All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
Last Updated: 2021-08-14
