DATA PROCESSING ADDENDUM
1. Background
1.1 In accordance with clause 9 of the Terms of Service, this Data Processing Addendum ("DPA") sets out the basis on which FDU processes Customer Personal Data (as defined below).
1.2 In the event of a conflict between any of the provisions of this DPA and the remaining provisions of the Agreement, the provisions of this DPA shall prevail.
2. DEFINITONS
2.1 Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out above in clause 9 and the following capitalised terms used in this DPA shall be defined as follows:
(a) "Customer Personal Data" means the personal data described in ANNEX 1 and any other personal data that FDU processes on behalf of the Customer in connection with FDU's provision of the Services;
(b) "Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and all applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of Customer Personal Data;
(c) "European Economic Area" or "EEA" means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;
(d) "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Customer Personal Data;
(e) "Standard Contractual Clauses" means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission (which will automatically apply);
(f) "Subprocessor" means any Processor engaged by FDU who agrees to receive from FDU Customer Personal Data; and
(g) the terms "personal data", "Controller", "Processor", "Data Subject", "Process" and "Supervisory Authority" shall have the same meaning as set out in the GDPR.
3. DATA PROCESSING
3.1 Instructions for Data Processing. FDU will only Process Customer Personal Data in accordance with (a) the Agreement, to the extent necessary to provide the Services to the Customer, and (b) the Customer's written instructions, unless Processing is required by European Union or Member State law to which FDU is subject, in which case FDU shall, to the extent permitted by applicable law, inform the Customer of that legal requirement before Processing that Customer Personal Data.
3.2 Processing outside the scope of this Agreement will require prior written agreement between the Customer and FDU on additional instructions for Processing.
3.3 Required consents. Where required by applicable Data Protection Laws, the Customer will ensure that it has obtained/will obtain all necessary consents for the Processing of Customer Personal Data by FDU in accordance with the Agreement.
4. TRANSFER OF PERSONAL DATA
4.1 Authorised Subprocessors. The Customer agrees that FDU may use Amazon Web Services, Inc. as a Subprocessor to Process Customer Personal Data.
4.2 The Customer agrees that FDU may use subcontractors to fulfil its contractual obligations under the Agreement. FDU shall notify the Customer from time to time of the identity of any Subprocessor it engages. If the Customer (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, the Customer may request that FDU moves the Customer Personal Data to another Subprocessor and FDU shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Subprocessor does not Process any of the Customer Personal Data. FDU shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without the prior written consent of Customer and unless FDU enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of Customer Personal Data, as are imposed on FDU under this Agreement including this DPA.
4.3 Save as set out in clauses 4.1 and 4.2, FDU shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without the prior written consent of the Customer, and unless FDU enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regards to their Processing of Customer Personal Data as are imposed on FDU under this Agreement.
4.4 Liability of Subprocessors. FDU shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Customer for the acts and omissions of any Subprocessor approved by the Customer as if they were the acts and omissions of FDU.
4.5 Transfers of Personal Data Outside the EEA. To the extent that the Processing of Customer Personal Data by FDU involves the export of such Personal Data to a country or territory outside the EEA, such transfer shall be to a third party:
a) in a country subject to an adequacy decision by the European Commission;
b) that is a member of a compliance scheme recognised by the European Commission as offering adequate protection for the rights and freedoms of data subjects such as the EU-U.S. Privacy Shield; or
c) that has signed Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission, (with the Customer as data exporter and the third party as data importer). For this purpose, the Customer appoints FDU to act as its agent with the authority to complete and enter into the Standard Contractual Clauses as agent for the Customer on its behalf for this purpose.
5. DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS
5.1 FDU Security Obligations. 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, FDU shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk including, where applicable by virtue of Article 28(3)(c) of the GDPR, and as appropriate, the measures referred to in Article 32(1) of the GDPR. Without limiting the generality of the foregoing, FDU shall put in place and maintain the technical and organisational measures set out in ANNEX 2.
5.2 Security Audits. The Customer may, upon reasonable notice, audit (by itself or using independent third party auditors) FDU's compliance with the security measures set out in this DPA (including the technical and organisational measures as set out in ANNEX 2), including by conducting audits of FDU's (and Suprocessors') data processing facilities. Upon request by the Customer, FDU shall make available all information reasonably necessary to demonstrate compliance with this DPA.
5.3 Security Incident Notification. If FDU or any Subprocessor becomes aware of a Security Incident, FDU will (a) notify the Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.
5.4 FDU Employees and Personnel. FDU shall treat the Customer Personal Data as the Confidential Information of the Customer, and shall ensure that:
(a) access to Customer Personal Data is limited to those employees or other personnel who have a business need to have access to such Customer Personal Data;
(b) any employees or other personnel have agreed in writing to protect the confidentiality and security of Customer Personal Data.
6. ACCESS REQUESTS AND DATA SUBJECT RIGHTS
6.1 Data Subject Requests. Save as required (or where prohibited) under applicable law, FDU shall notify the Customer of any request received by FDU or any Subprocessor from a Data Subject in respect of their personal data included in the Customer Personal Data, and shall not respond to the Data Subject.
6.2 FDU shall, where possible, assist the Customer with ensuring its compliance under applicable Data Protection Laws, and in particular shall:
(a) provide the Customer with the ability to correct, delete, block, access or copy the personal data of a Data Subject, or
(b) promptly correct, delete, block, access or copy Customer Personal Data within the Services at the Customer's request.
6.3 Government Disclosure. FDU shall notify the Customer of any request for the disclosure of Customer Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
6.4 Data Subject Rights. Where applicable, and taking into account the nature of the Processing, FDU shall use all reasonable endeavours to assist the Customer by implementing any other appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising Data Subject rights laid down in the GDPR.
7. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
7.1 To the extent required under applicable Data Protection Laws, FDU shall provide reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Customer, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing and information available to FDU.
8. Duration and TERMINATION
8.1 Deletion of data. Subject to 8.2 and 8.3 below, FDU shall, within 90 (ninety) days of the date of termination of the Agreement:
(a) return a complete copy of all Customer Personal Data by secure file transfer in such a format as notified by the Customer to FDU; and
(b) delete and use all reasonable efforts to procure the deletion of all other copies of Customer Personal Data Processed by FDU or any Subprocessors.
8.2 Subject to section 8.3 below, the Customer may in its absolute discretion notify FDU in writing within 30 (thirty) days of the date of termination of the Agreement to require FDU to delete and procure the deletion of all copies of Customer Personal Data Processed by FDU. FDU shall, within 90 (ninety) days of the date of termination of the Agreement:
(a) comply with any such written request; and
(b) use all reasonable endeavours to procure that its Subprocessors delete all Customer Personal Data Processed by such Subprocessors,
and, where this section 8.2 applies, FDU shall not be required to provide a copy of the Customer Personal Data to the Customer.
8.3 FDU and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that FDU shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
ANNEX 1
DETAILS OF THE PROCESSING OF CUSTOMER PERSONAL DATA
This ANNEX 1 includes certain details of the processing of Customer Personal Data as required by Article 28(3) of the GDPR.
Subject matter and duration of the Processing of Customer Personal Data
" The subject matter and the duration of the Processing of the Customer Personal Data are set out in the Agreement including this DPA.
The nature and purpose of the Processing of Customer Personal Data
" The Customer Personal Data will be subject to the following basic Processing activities: transmitting, collecting, storing, and analysing data in order to provide the Services to the Customer, and any other activities related to the provision of the Services or as specified in the Agreement.
The types of Customer Personal Data to be Processed
" Contact details including name, email address, telephone number and addresses associated with an account or order
" Comments and opinions
" Payment and transaction information
" Preferences
" Location
" Information about fraudulent or criminal activity relating to an account
" Information provided by third parties
" Information about how the Service is used including access frequency
" Information about the computer or other electronic devices used to connect to the Service such as details about the type of device (which can include unique device identifying numbers), its operating system and browser and applications connected to the Service through the device
The categories of Data Subject to whom the Customer Personal Data relates
The categories of Data Subject to whom the Customer Personal Data relates concern:
" Employees and other personnel of the Customer and end users of the services of the Customer.
The obligations and rights of the Customer
" The obligations and rights of the Customer are as set out in the Agreement including this DPA.
ANNEX 2
Technical and Organisational Security Measures
1. FDU maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:
(a) secure any personal data Processed by FDU against accidental or unlawful loss, access or disclosure;
(b) identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data Processed by FDU;
(c) minimise security risks, including through risk assessment and regular testing.
2. FDU will, and will use reasonable efforts to procure that its Subprocessors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.
3. FDU will, and will use reasonable efforts to procure that its Subprocessors periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
