1. Definitions And Interpretation

The following definitions and rules of interpretation apply in this DPA.

1.1 Definitions:

Both parties: you (“the Customer”) and us (“Unobox”, “the Provider”)

Business Purposes: the Service described in the Service Agreement.

Data Subject: an individual who is the subject of Personal Data.

Personal Data: any information relating to an identified or identifiable natural person that is processed by us as a result of, or in connection with, the provision of the services under the Service Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, 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.

Processing, processes and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties.

Data Protection Legislation: all applicable privacy and data protection laws including the GDPR and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time.

GDPR: General Data Protection Regulation ((EU) 2016/679).

Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

Standard Contractual Clauses (SCC): the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries, as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which comprises Annex B.

1.2 This DPA is subject to the terms of the Service Agreement and is incorporated into the Service Agreement. Interpretations and defined terms set forth in the Service Agreement apply to the interpretation of this DPA.

1.3 The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

1.4 A reference to writing or written includes email.

1.5 In the case of conflict or ambiguity between:

2. Personal Data Types And Processing Purposes

2.1 Both parties acknowledge that for the purpose of the Data Protection Legislation, you are the controller and we are the processor.

2.2 You retain control of the Personal Data and remain responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions that you give us.

2.3 Our Privacy Notice describes the subject matter, duration, nature and purpose of processing and the Personal Data categories and Data Subject types in respect of which we may process to fulfil the Business Purposes.

3. Provider’s Obligations

3.1 We will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes and in accordance with your written instructions. We will not process the Personal Data for any other purpose or in any way that does not comply with this DPA or the Data Protection Legislation.

3.2 We will promptly comply with any Customer request or instruction requiring us to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3 We will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless you or this DPA specifically authorise the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires us to process or disclose Personal Data, we will first inform you of the legal or regulatory requirement and give you an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.4 We will reasonably assist you with meeting your compliance obligations under the Data Protection Legislation, taking into account the nature of our processing and the information available to us, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

3.5 We will promptly notify you of any changes to Data Protection Legislation that may adversely affect our performance of the Service Agreement.

4. Provider’s Employees

4.1 We will ensure that all employees:

5. Security

5.1 We will at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.

5.2 We will implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

6. Personal Data Breach

6.1 We will promptly and without undue delay notify you if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. We will restore such Personal Data at our own expense.

6.2 We will immediately and without undue delay notify you if we become aware of any incidents that involve:

6.3 Where we become aware of any such incident, we shall, without undue delay, also provide you with the following information:

6.4 Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, we will reasonably cooperate with you with respect to any investigation.

6.5 We agree that you have the sole right to determine:

6.6 We will cover all reasonable expenses associated with the performance of the obligations under Clause 6.2 and Clause 6.4 unless the matter arose from your specific instructions, negligence, wilful default or breach of this DPA, in which case you will cover all reasonable expenses.

7. Cross Border Transfers Of Personal Data

7.1 We will only process, or permit the processing, of Personal Data outside the EEA if at least one of the following conditions is met:

7.2 If any Personal Data transfer requires execution of SCC in order to comply with the Data Protection Legislation (where you are the entity exporting Personal Data to us outside the EEA), we will complete all relevant details in, and execute, the SCC, and take all other actions required to legitimise the transfer.

7.3 If you consent to appointment by we located within the EEA of a subcontractor located outside the EEA in compliance with the provisions of clause 8, then you authorises us to enter into SCC with the subcontractor in your name and on its behalf. We will make the executed SCC available to you on request.

8. Subcontractors

8.1 We may only authorise a third party (subcontractor) to process the Personal Data if:

8.2 Those subcontractors approved as at the commencement of this DPA are as set out in Annex A.

8.3 Where the subcontractor fails to fulfil its obligations under such written agreement, we remain fully liable to you for the subcontractor’s performance of its agreement obligations.

8.4 The Parties consider us to control any Personal Data controlled by or in the possession of its subcontractors.

9. Complaints, Data Subject Requests And Third Party Rights

9.1 We will, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to you as you may reasonably require, to enable you to comply with:

9.2 We will notify you immediately if we receive any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Legislation.

9.3 We will notify you within 3 working days if we receive a request from a Data Subject to exercise any of their related rights under the Data Protection Legislation.

9.4 We will give you our full cooperation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5 We will not disclose the Personal Data to any Data Subject or third party other than at your request or instruction, as provided for in this DPA or as required by law.

20. Term And Termination

10.1 This DPA will remain in full force and effect so long as:

10.2 Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Service Agreement in order to protect Personal Data will remain in full force and effect.

10.3 Our failure to comply with the terms of this DPA is a material breach of the Service Agreement. In such event, you may terminate the Service Agreement effective immediately.

10.4 If a change in any Data Protection Legislation prevents us from fulfilling all or part of our obligations, we will suspend the processing of Personal Data until that processing complies with the new requirements. If we are unable to bring the Personal Data processing into compliance with the Data Protection Legislation, we may terminate the Service Agreement on written notice to you.

21. Data Return And Destruction

11.1 At your request, we will give you a copy of your Personal Data.

11.2 On termination of the Service Agreement for any reason or expiry of its term, we will securely delete or destroy and, if directed in writing by you, return all or any Personal Data related to this DPA in our possession or control.

11.3 If any law, regulation, or government or regulatory body requires us to retain any documents or materials that we would otherwise be required to return or destroy, we will notify you in writing of that retention requirement, giving details of the documents or materials that we must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

22. Records

12.1 We will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data we carry out for you (Records).

12.2 We will ensure that the Records are sufficient to enable you to verify our compliance with our obligations under this DPA and we will provide you with copies of the Records upon request.

12.3 We will update the information listed in the Annexes to this DPA to ensure that it always reflects current practices.

12.4 Both parties are responsible for reviewing the information listed in the Annexes to this DPA at least once a year to confirm its current accuracy.

23. Audits

13.1 We will contribute to audits or inspections conducted by our authorised auditors and will make available to you upon reasonable request the respective audit reports (no more frequently than once per year) provided that you enter into a non-disclosure agreement with us regarding such audit reports.

13.2 If a Personal Data Breach occurs or is occurring, or we become aware of a breach of any of our obligations under this DPA or any Data Protection Legislation, we will:

13.3 At least once a year, we will conduct audits of our Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with our obligations under this DPA.

13.5 On your written request, we will make all of the relevant audit reports available to you for review. You will treat such audit reports as our confidential information under this DPA.

13.6 We will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by our management.

24. Warranties

14.1 We warrant and represent that:

14.2 You warrant and represent that our expected use of the Personal Data for the Business Purposes and as specifically instructed by you will comply with the Data Protection Legislation.

25. Notice

15.1 Any notice or other communication given by you to us in connection with this DPA must be in email and delivered to our Data Privacy Manager on [email protected]

15.2 Any notice or other communication given by us to you will be in writing and delivered to the primary email address we hold for you on your account. You are responsible for ensuring this remains up-to-date.

15.3 Clauses 15.1 and 15.2 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Annex A: Subprocessors

To be notified whenever changes are made to this list, please contact us.

Annex B: Standard Contractual Clauses

Clause 1: Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘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 ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘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;

(e) ‘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 Member State in which the data exporter is established;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration,

Clause 2: Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3: Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, 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.

3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, 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.

4. 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.

Clause 4: Obligations of the data exporter

The data exporter agrees and warrants:

(a) 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 (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer 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;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect 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, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the data importer

The data importer agrees and warrants:

(a) 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;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the 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;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6: Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor 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 in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, 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, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because 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, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. 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.

Clause 8: Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9: Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales.

Clause 10: Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Sub-processing

1.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. 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 fulfil 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.

2. 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 Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 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.

3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely England and Wales.

4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12: Obligation after the termination of personal data-processing services

1. 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.

2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.