GDPR Data Processing Agreement
This Data Processing Agreement ("Agreement") forms part of the Contract for Services ("Principal Agreement") between
__________________________
(the “PARTNER”) and
Adaptics Ltd, dba Fresco
(the “Data Processor”) (together as the “Parties”)
WHEREAS
(A) The PARTNER acts as a Data Controller.
(B) The PARTNER 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 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 "PARTNER Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of PARTNER pursuant to or in connection with the Principal Agreement;
1.1.3 "Contracted 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 any data protection and privacy legislation in force in the EU, including the GDPR and domestic legislation of each Member State implementing the GDPR as amended, replaced or superseded from time to time;
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 PARTNER Personal Data from the PARTNER to a Contracted Processor; or
1.1.8.2 an onward transfer of PARTNER 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 __________________ services the PARTNER provides.
1.1.10 "Subprocessor" means any person appointed by or on behalf of the Processor to process Personal Data on behalf of the PARTNER 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 PARTNER Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of PARTNER Personal Data; and
2.1.2 not Process PARTNER Personal Data other than on the relevant PARTNER’s documented instructions.
2.2 The PARTNER hereby instructs Processor to process PARTNER Personal Data. The PARTNER is solely responsible for ensuring that it has complied, and will continue to comply, with the Data Protection Laws in its use of the Services. PARTNER further warrants that it is solely responsible for ensuring that any Personal Data provided to Fresco in connection with the Services is accurate, complete, and lawful in accordance with applicable law and that PARTNER has authority to process said Personal Data in accordance with Data Protection Laws.
2.3 The Processor shall notify the PARTNER if, in its reasonable opinion, any instruction received from the PARTNER infringes any Data Protection Laws, and the Processor shall where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the PARTNER issues new Instructions with which the Processor is able to comply. If this provision is invoked, the Processor will not be liable to the PARTNER under the Principal Agreement for any failure to perform the applicable Services until such time as the PARTNER issues new lawful instructions with regard to the Processing.
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 PARTNER Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant PARTNER 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, the Processor shall in relation to the PARTNER 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 of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Subprocessing
5.1 Processor will engage Subprocessors in the provision of the Services. Processor shall not appoint (or disclose any PARTNER Personal Data to) any Subprocessor unless required or authorized by the PARTNER. Processor will be liable for the acts and omissions of any such Subprocessor to the same extent as if the acts or omissions were performed by Processor.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, Processor shall assist the PARTNER by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the PARTNER obligations, as reasonably understood by PARTNER, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify PARTNER if it receives a request from a Data Subject under any Data Protection Law in respect of PARTNER Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of PARTNER 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 PARTNER of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Processor shall notify PARTNER without undue delay upon Processor becoming aware of a Personal Data Breach affecting PARTNER Personal Data, providing PARTNER with sufficient information to allow the PARTNER to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall cooperate with the PARTNER and take reasonable commercial steps as are directed by PARTNER to assist in the investigation, mitigation, and remediation of each such Personal Data
Breach.
8. Data Protection Impact Assessment and Prior Consultation Processor shall provide reasonable assistance to the PARTNER with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which PARTNER 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 PARTNER Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of PARTNER Personal Data
9.1 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 PARTNER Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those PARTNER Personal Data.
9.2 Processor shall provide written certification to PARTNER that it has fully complied with this section 9 within 10 business days of the Cessation Date.
10. Audit rights
10.1 Subject to this section 10, Processor shall make available to the PARTNER on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the PARTNER or an auditor mandated by the PARTNER in relation to the Processing of the PARTNER Personal Data by the Contracted Processors.
10.2 Information and audit rights of the PARTNER 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 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 or a country that does not ensure an adequate level of data protection, the Parties shall ensure that the personal data are adequately protected. The PARTNER acknowledges and agrees that the Processor may make such a Data Transfer if it demonstrates or implements an appropriate safeguard for that Data Transfer in accordance with Data Protection Laws. To achieve this, the Parties shall, unless agreed otherwise, rely on EU-approved standard contractual clauses or other approved mechanisms 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 pursuant to Section 8.5 of the Primary Agreement.
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. Governing Law and Jurisdiction
13.1 This Agreement is governed by the laws of Ireland.
13.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Ireland, subject to possible appeal to __________________________________.
Annex 1
This paradigm includes certain details of the Processing of PARTNER Personal Data as required by Article 28(3) GDPR.
Personal Data means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural or legal person, device, or household, either alone or in combination with other information, that is a PARTNER First User or PARTNER Appliance User. Personal Data includes, without limitation, real name (first and last), alias, account name, postal address, telephone number, email address, unique personal identifier, online identifier, Internet Protocol address, geolocation data, commercial information, including purchasing or consuming histories or tendencies; financial account numbers; social security number, driver’s license or state identification number, passport number, or similar identifiers; characteristics of protected classifications; health information, professional or employment-related information, biometric information, photo, video, audio, electronic, thermal, olfactory or similar information, Internet or other electronic network activity information; education information, demographic information, and inferences drawn from other information to create a profile about an individual reflecting their preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes. Personal Data includes any information that may be subject to applicable Privacy and Security Laws.
Subject matter and duration of the Processing of PARTNER Personal Data
The subject matter and duration of the Processing of the PARTNER Personal Data are set out in this Amendment.
The nature and purpose of the Processing of PARTNER Personal Data
The nature and purpose of the Processing of PARTNER Personal Data are set out in this Amendment.
The types of PARTNER Personal Data to be Processed
The types of PARTNER Personal Data to be Processed include:
“Personal Data”
Has the meaning set forth above.
“User Behavior Data”
Data that relates to an individual user's behavior on the platform throughout the cooking journey, including but not limited to; the user's recipe selection, dietary preferences, meal planning habits, shopping habits (ingredients, consumables, accessories), cooking times, and/or cooking processes.
“Platform Data”
Data, in anonymized and aggregated form related to platform usage (e.g., segmented retention, NPS)
“PARTNER Appliance Data”
Data shared with the Fresco Platform through the loT module
“Other Appliance Data”
Any information/data deriving from any appliance or appliances that are not PARTNER branded, in anonymized or individual form that shares information with the Fresco platform
The obligations and rights of PARTNER and PARTNER Affiliates
The obligations and rights of PARTNER and PARTNER Affiliates are set out in this Amendment. For purposes of the GDPR, the Parties shall have the following roles with respect to PARTNER Personal Data (as used below, the terms “Processor” and “Controller” shall have the meanings given to them under the GDPR):
With respect to the PARTNER Fresco App: NOTE REMOVE THIS UNLESS WHITE LABEL
With respect to the Fresco App: