GDPR – Data Processing

This Data Processing Agreement (“Agreement“) forms part of the Contract for Services (“Principal Agreement“)

Between the “Parties”

APPSCENIC LTD, a UK limited liability company, doing business as AppScenic and having its headquarters at 35 Westegate, Huddersfield, North Yorkshire, HD1 1PA, UK – the Company, the Data Controller, the Data Exporter

And

The company who, as a part of its registration, provides the information and who will electronically sign these Standard Contractual Clauses – the – the Data processor, the Data Importer 

Whereas

(A) The Company acts as a Data Controller;

(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to 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 and with 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 the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and all regulations made under section 2(2) of the European Communities Act 1972 which relate to the GDPR or the Law Enforcement Directive;

(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the UK Data Protection Act 2018 and all regulations made under this Act;

(F) The Parties wish to lay down their rights and obligations;

hereby agree as follows:

 

1. DEFINITIONS AND INTERPRETATION

1.1 Unless otherwise defined herein, the 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 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

1.1.3 “Contracted Processor” means a Sub-processor;

1.1.4 “Data Protection Laws” means EU Data Protection Laws and Uk Data Protection Act 2018, 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 UK 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:

1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or

1.1.8.2 an onward transfer of Company 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);

1.1.9 “Services” means the Software as a Service – SaaS – the Company provides, where “SaaS” is a method of software delivery and licensing in which software is accessed online via a subscription, rather than bought and installed on individual computers.

1.1.10 “Sub-processor” means any person appointed by or on behalf of the 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.

1.3. The following terms shall have the same meaning as in the UK Data Protection Act 2018 and their cognate terms shall be construed accordingly:

1.3.A.‘the data exporter’ means the controller who transfers the personal data;

1.3.B.‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system covered by UK adequacy regulations issued under Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 of the Data Protection Act 2018;

1.3.C. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

1.3.D. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the UK;

1.3.E.‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

2. PROCESSING OF COMPANY PERSONAL DATA

2.1 Processor shall:

2.1.1 comply with all applicable Data Protection Laws, as mentioned above, in the Processing of Company Personal Data; and

2.1.2 not process Company Personal Data other than on the relevant Company’s documented instructions.

2.2 The Company instructs Processor to process Company Personal Data.

2.3. The data exporter agrees and warrants:

1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law;
2. that it has trained and will always assist the data importer on how to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
3. that the data importer will provide sufficient guarantees in respect of the technical security measures assumed by this contract;
4. that the security measures are appropriate to protect personal information against any data breach(accidental or unlawful destruction or loss, alteration, unauthorised disclosure or access and so on, considering the processing involving the transmission of data over a network, 
5. that it will ensure compliance with the security measures;
6. that the data subject has been informed or will be informed before, or as soon as possible about the transfer that involves special categories of data; in this respect, the data subject should be notified about that the transfer of his data could be transmitted to a third country not covered by adequacy regulations issued under GDPR  and Section 17A Data Protection Act 2018 or Paragraphs 4 and 5 of Schedule 21 Data Protection Act 2018;
7. to forward any notification received from the data importer or any sub-processor to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension when the obligation of notifying regards any relevant law change with a potentially adverse effect on the fundamental rights;
8. on request, to make available to the data subjects a copy of the Clauses, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to been made in accordance with the Clauses(any commercial information from the contract should be removed prior to this communication);
9. that the processing activity is carried out by a sub-processor providing at least the same tier of protection for the personal data and the rights of data subject as the data importer under the Clauses;
10. that it will guarantee that the data importer: will comply with the data protection laws and the processing of data will be only on the data exporter’s behalf, will have technical and appropriate security measures to protect personal data, will assure the obligation of providing the data subject with a copy of the Clauses and, in case of sub-processing, will assume the obligation of the sub-processor to ensure the same tier of protection as the data importer is providing.

The data exporter takes the following security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access:

1. All Personal Data received hereunder will be stored and processed in UK and Europe;
2. In addition to the above, the data importer is assumed compliant with the new provisions of the EU Decision 2021/915 of 4 June 2021 on the standard contractual clauses between controllers and processors under Article 28(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29(7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council;
3. Also AppScenic is an active participant in the EU-US Privacy Shield Program when applicable;
4. The data importer has to assure/assures restricted access of the qualified senior personnel members with the ability to directly access files containing personal information on AppScenic servers; each of these staff members has agreed to maintain the confidentiality of any personal data;
5. All data uploads and downloads sent between AppScenic and its customers flow through third party CloudFlare’s servers in the Europe/UK; the CloudFlare system ensures strong defense against cyberattacks, data breaches due to Advanced Firewall;
6. The AppScenic support team does not have access to CloudFlare’s servers;
7. Our clients’ personal data never get in the development, pre-production or production channels;
8.  The data importer should maintain its security protections to block threats and limit abusive bots and crawlers;
9.  Any information that is uploaded by an AppScenic customer to AppScenic.com is transmitted via browser/FTP through an SSL connection, and all files are stored in an encrypted file using a standard algorithm for the protection of stored data defined by CloudFlare’s servers in the EU/UK; 
10. If a customer chooses to receive files via email, such files shall be sent encrypted, with a password via a separate email.

The Data Importer has the following obligations:

1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
2. to promptly notify the potential harmful legislation change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; that applies when it has reason to believe that the legislation applicable will prevent it from fulfilling the instructions received from the data exporter and its obligations under the contract and is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses;
3. that it will promptly notify the data exporter about: (1) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited; (2) any accidental or unauthorised access; (3) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
4. to handle as soon as possible with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to comply with the advice of the supervisory authority relative to the processing of the data transferred;
5. to submit its data-processing facilities for an audit of the processing activities covered by the Clauses; the audit should be carried out by the data exporter or an independent and certificated inspection body subjected to the obligation of confidentiality, selected by the data exporter, where applicable, in agreement with the Commissioner;
6. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing and a summary description of the security measures; all commercial information should be removed from the above-mentioned documents;
7. that it has previously informed the data exporter and obtained its prior written consent in the situation of sub-processing;
8. that the processing services by the sub-processor will be carried out in accordance with Clause regarding the sub-processing;
9. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter;
10. to implement technical and organisational security measures, as instructed by the data exporter, before processing the personal data transferred.

 

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 Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company 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.

 

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, 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, Processor shall take into account in particular the risks that are presented by Processing, in particular from a Personal Data Breach as instructed above.

 

5. SUB-PROCESSING

1. Processor shall not appoint or disclose any Company Personal Data to any Sub-processor unless required or authorized by the Company.
2. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. 
3. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
4. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in this Agreement for cases where the data subject is not able to bring the claim for compensation against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
5. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the GDPR and the laws of the county of the United Kingdom where the exporter is established.
6. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and be notified by the data importer, which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

 

6. DATA SUBJECT RIGHTS

6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Processor shall:

6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

6.2.2 ensure that it does not respond to that request except on the documented instructions of Company 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 Company of that legal requirement before the Contracted Processor responds to the request.

 

7. PERSONAL DATA BREACH

7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company 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 co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

 

8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION 

The 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

1. Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
2. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
3. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the Commissioner, it will submit its data-processing facilities for an audit of the measures referred to above.

 

10. AUDIT RIGHTS

10.1 Subject to this section 10, Processor shall make available to the Company 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.

10.2 Information and audit rights of the Company 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 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.

11.2. All international data transfers are subjected to the provisions of the EU Decision 2021/915 of 4 June 2021 on the standard contractual clauses between controllers and processors under Article 28(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29(7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council.

11.3. Any transfer of data to a third country or an international organisation by our processors is done only on the basis of documented instructions from the AppScenic or in order to fulfill a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.

11.4. The special categories of personal data where applicable are:

– The Data Exporter will transfer personnel data to be processed by the Data Importer on computer servers located in the UK. The categories of personal data to be processed include: first name; last name; order id; order details; city; state; country; and email addresses. The types of data subjects whose information will be processed are individuals. The purposes for which the personal data will be processed include: processing orders placed on the platform; and updating system with tracking details, maintain communication about the order status between parties.

– The data subject can enforce against the data exporter the clauses regarding the obligations of the data exporter(b to i), the obligations of the Data Importer (a to e, g to j), the liability (1 and 2), the jurisdiction and mediation, the cooperation with the supervisory authorities, the laws applicable, the sub-processing and the obligation after the termination of contracts of the third-party beneficiary.

– The data subject can enforce against the data importer the relevant Clauses of this agreement in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

– The data subject can enforce against the sub-processor the relevant Clauses of this agreement in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

– The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

 

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.

12.3. Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations concerning the third party transfer and the processing operations, is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation as mentioned above against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations concerning the third party transfer and the processing operations because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter; if the data exporter has any successor entity that assumed his entire legal obligations by contract or by operation of law, the data subject will enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

1. If both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer in order to assure the right to complain to the data subject. If any successor entity has assumed the entire legal obligations of the data exporter or data importer, by contract or by operation of law, the data subject can be subject to a complaint against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

 

13. GOVERNING LAW AND JURISDICTION

13.1. This Agreement is governed by the laws of the EU and UK.

13.2. Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted

1. to mediation, by an independent person or, where applicable, by the Commissioner;
2. to the jurisdiction of the courts of the member states of EU and
3. to the jurisdiction of the High Court in England and Wales

 

13.3. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

13.4. The parties agree, under the law, to cooperate with the supervisory authority.

 

IN WITNESS WHEREOF, this Agreement is entered into with effect from the date of the acceptance of the standard contractual clauses comprised in this Data Processing Agreement. 

By clicking the “I have read these standard contractual clauses and accept” button below, you expressly agree to be bound by and strictly adhere to all of the terms of these standard contractual clauses. If you do not agree to all of the terms of these standard contractual clauses, do not access or use any part of the AppScenic hosted service from the UK. The date of the standard contractual clauses is the date you accept.