Data Processing Addendum
Effective May 24th, 2018
This GDPR Data Processing Addendum, including the Standard Contractual Clauses referenced herein (“DPA”), is dated amends and supplements any existing and currently valid service agreement (the “Agreement”) either previously or concurrently made between you
and ESL Passport and sets forth other terms that apply to the extent any information you provide to Processor pursuant to the Agreement includes Personal Data (as defined below).
“EU Data Protection Laws” means all laws and regulations of the European Union, the European Economic Area, their member states, Switzerland and the United Kingdom, applicable to the processing of Personal Data under the Agreement, including (where applicable) the GDPR.
- “GDPR” means the General Data Protection Regulation (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).
- “Personal Data” means any information relating to an identified or identifiable natural person located in the European Economic Area, Switzerland, and the United Kingdom. An identifiable natural person is one who can be identified, directly or indirectly, in particular by referencing an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
- “Standard Contractual Clauses” means the model clauses for the transfer of personal data to processors established in third countries approved by the European Commission, the approved version of which is set out in the European Commission's Decision 2010/87/EU of 5 February 2010 and at HERE, which clauses are incorporated herein by this reference.
This DPA is effective on the later of (a) the start of enforcement of the GDPR or (b) the date Processor begins to process Personal Data on behalf of Customer.
- Processor shall [Article 28(3)]:
- process the Personal Data only on documented instructions from Customer unless required to do so by European Union or Member State law to which Processor is subject; in such a case, Processor shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- take all applicable and appropriate measures required of processors pursuant to Article 32 of the GDPR.
- taking into account the nature of the processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer’s obligation to respond to requests for exercising the data subject’s rights set forth in Chapter III of the GDPR. Processor may charge a fee (based on Processor’s reasonable costs) for responding to data subject requests under this Section 4(b)(iv).
- assist Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to Processor.
- at the direction of Customer, delete or return all the Personal Data to Customer after the end of the provision of services relating to processing, and delete existing copies unless European Union or Member State or United States law requires storage of the Personal Data; provided, however, that Processor may retain Personal Data for the length of any applicable statutes of limitations for the purposes of bringing or defending claims. Processor may charge a fee (based on Processor’s reasonable costs) for any data deletion under this Section 4(b)(vi).
- make available to Customer all information necessary to demonstrate compliance with the obligations set forth in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by Customer and immediately inform Customer if, in its opinion, an instruction infringes the GDPR or other European Union or Member State data protection provisions. Processor may charge a fee (based on Processor’s reasonable costs) for any audits under this Section 4(b)(vii).
- Where Processor engages another processor for carrying out specific processing activities on behalf of Customer, the same data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act under European Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. [Article 28(4)]
- 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, Customer and Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk. [Article 32(1)]
- In assessing the appropriate level of security, account shall be taken of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed. [Article 32(2)]
- Customer and Processor shall take steps to ensure that any natural person acting under the authority of Customer or Processor who has access to Personal Data does not process them except on instructions from Customer, unless he or she is required to do so by European Union or Member State law (or, in the case of Processor, United States law). [Article 32(4)]
- Processor shall notify Customer without undue delay after becoming aware of a Personal Data breach. [Article 33(2)] Such notice will, at a minimum, (A) describe the nature of the Personal Data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned; (B) communicate the name and contact details of the data protection officer or other contact where more information can be obtained; (C) describe the likely consequences of the personal data breach; and (D) describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects. [Article 33(3)] Processor’s notification or response under this Section 4(g) shall not be construed as an acknowledgment by Processor of any fault or liability with respect to such Personal Data breach.
- Customer acknowledges and agrees that Processor is located in the United States and that Customer’s provision of Personal Data to Processor for processing is a transfer of Personal Data to the United States.
- All transfers of Customer Personal Data out of the European Economic Area, Switzerland and the United Kingdom to countries that do not ensure an adequate level of data protection within the meaning of applicable data protection laws shall be governed by the Standard Contractual Clauses. The Standard Contractual Clauses, and Appendices 1 and 2 to the Standard Contractual Clauses set out in Exhibit A to this Addendum, are incorporated in this DPA by this reference solely as required with respect to Personal Data. Execution of this DPA by both parties includes execution of the Standard Contractual Clauses with respect to the processing of Personal Data.
To the extent that it is determined by any data protection authority that the Agreement or this DPA is insufficient to comply with the applicable EU Data Protection Laws, or to the extent required otherwise by any changes in the applicable data protection laws, Customer and Processor agree to cooperate in good faith to amend the Agreement or this DPA or enter into further mutually agreeable data processing agreements in an effort to comply with any EU Data Protection Laws applicable to the Processor and Customer.
The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the State of Texas and the laws of the United States applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the state of Texas with respect to any dispute or claim arising out of or in connection with this Addendum.
9600 Gaylord Pkwy #1204, Frisco, Texas, 75035, United States