WEM Data Processing Agreement
This Data Processing Agreement (“DPA“) forms part of the WEM APAC End User
License Agreement where:
(A) The Customer acts as a Data Controller.
(B) The Company acts as the Data 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 including (but not limited to) 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:
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 “Customer Personal Data” means any Personal Data provided by Customer to Data Processor by the use of the
company’s Platform pursuant or in connection to the License Agreement and this Agreement to be processed by the
data Processor or any on its behalf;
1.1.3 “Data Processor” means a Subprocessor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “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legislation of each Member State and as amended, replaced, or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
220.127.116.11 a transfer of Customer Personal Data to the Platform owned by Data Processor; or 18.104.22.168 an onward transfer of Customer Personal Data from Customer or from Data Processor to a Subcontracted Processor, or between two establishments of a Data 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);
1.1.9 “Services” means the License to use the WEM Platform owned by the Company
1.1.10 “Subprocessor” means any person appointed by or on behalf of Data Processor to process Personal Data on behalf of the
Customer 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 Company Personal Data
2.1 Both Parties shall comply with all applicable Data Protection Laws in the Processing of Company Personal Data; Data Processor shall not Process Company Personal Data other than on the relevant Customer’s (Data Controller’s) documented instructions. The Customer is solely responsible to instruct Data Processor to process Customer Personal Data.
2.2. Customer is solely responsible to the Customer Data provided to Data Processor in any way and manner including (but not limited to) the source of the Customer Data, the content of the Customer Data, the reliability and correctness of the Customer Data, and the legality of the possession of the Customer Data.
3. Data Processor Personnel
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 License 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.
4.1 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, Processor shall in relation to the Company 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, Data Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Processor may appoint Subprocessor on its behalf. In such a case, a written notification will be sent to Customer at least 5 days up front and Customer shall react (reject or authorize) within 3 day in writing. Customer. If a reject is sent it should be accompanied by a detailed explanation. If no reaction is received within the timeline this would be interpreted as an acceptance of Customer.
6. Data Subject Rights
6.1 Parties shall implement reasonable technical and organizational measures, insofar as this is possible, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Data Processor shall:
6.2.1 promptly notify Customer if it receives a request from a DataSubject 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.
7. Personal Data Breach
7.1 Data Processor shall notify Customer without undue delay upon Data 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.
7.2 Customer shall notify Data Processor without undue delay upon Customer Processor becoming aware of a Personal Data Breach affecting Customer Personal Data which is suspected to be related to Data Processor activities.
In such a case, Customer shall provide Data Processor with all sufficient information to allow Data Processor to meet any obligations under the Data Protection Laws.
7.3 Parties shall co-operate and take reasonable steps to assist in the investigation, mitigation and remediation of each such Personal Data Breach. In case costs are involved to Company or any other Third Party, these should be solely paid by Customer unless otherwise approved in writing by the Company.
8. Data Protection Impact Assessment and Prior Consultation Data Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company 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 Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Company Personal Data
9.1 Subject to this section 9 Data 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. In case Customer Data is stored on Customer Private Cloud, Customer is solely responsible for ensuring that on Cessation Date the Company/Data Processor will have no access to the Customer Data.
9.2 Data Processor shall provide a written certification to Company that it has fully complied with this section 9 within 10 business days of the Cessation Date, in case the Data is stored in Data Processor’s shared Cloud.
10. Audit rights
10.1 Subject to this section 10, Data Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors. Audits and any related requests shall be sent by Customer to the Data Processor in a written detailed request and will be handled (on a regular basis) by the Company within 60 days, subject to the approval of the Company and subject to all necessary confidentiality applicable clauses. In case of any related costs (of an auditor and/or costs of the Company arise from the audit or information request), Customer will solely be responsible to pay the costs. In case a related cost is requested by the Company, a written notification will be sent to Customer for a prior approval.
10.2 Information and audit rights of the Customer 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 The Data 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 the Company. 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 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.
13.1 The Jurisdiction of courts or Arbitration will be Victoria Australia. This Agreement is governed by the laws of the State of Victoria, Australia without regard to conflicts of law’s provisions and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA).
13.2 Relevant provisions of data protection legislation enacted in a client location, read along with the Privacy Act 1988 (Privacy Act) of Australia, shall apply.