Data Processing Agreement
The customer agreeing to these terms (“Customer”), and Pinmicro India Private limited or any other entity that directly or indirectly controls, is controlled by, or is under common control with Pinmicro K.K (as applicable, “Company”), have entered into one or more software product Agreement(s) (as defined below) and/or Complementary Product Agreements(s) (as defined below) (each, as amended from time to time, an “Agreement”).
The Company acts as a Data Controller and also performs certain Services, which imply the processing of personal data, as a Data Processor.
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).
The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
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 “Company Personal Data” means any Customer related Personal Data Processed by a the Company 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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:
188.8.131.52 a transfer of Company Personal Data from the Company to a Contracted Processor; or
184.108.40.206 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 hardware and software platform related services the Company provides.
1.1.10 “Subprocessor” means any person appointed by or on behalf of 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.
Processing of Company Personal Data
2.1 Company shall:
2.1.1 comply with all applicable Data Protection Laws 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.
Company 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.
4.1 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, Company 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, Company shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5.1 Company shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company.
Data Subject Rights
6.1 Taking into account the nature of the Processing, Company shall implement appropriate technical and organisational measures, insofar as this is possible, for the fulfilment 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 Company shall:
6.2.1 promptly take action 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 responds to that request or as required by Applicable Laws to which the Processor is subject, in which case Company shall to the extent permitted by Applicable Laws
meet all legal requirement before the Company responds to the request.
Personal Data Breach
7.1 Company shall notify without undue delay upon 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 Company shall co-operate and take reasonable commercial steps as are directed by law to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
Company shall provide reasonable assistance with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which is reasonably considered 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 Company.
Deletion or return of Company Personal Data
9.1 Deletion During Term. The Company will enable Customers to delete Customer Data during the applicable Term in a manner consistent with the functionality of the Services. If the Customer uses the Services to delete any Customer Data during the applicable Term and that Customer Data cannot be recovered by Customer (such as from the “trash”), this use will constitute an instruction to the Company to delete the relevant Customer Data from the Company’s systems in accordance with applicable law. The Company will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless European or National Law requires storage.
9.2 Deletion on Term Expiry. Subject to Section 9.3 (Deferred Deletion Instruction), on expiry of the applicable Term, Customer instructs the Company to delete all Customer Data (including existing copies) from the Company’s systems in accordance with applicable law. The Company will comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless European or National Law requires storage. Without prejudice to Section 9.1 (Access; Rectification; Restricted Processing; Portability), Customer is responsible for exporting, before the applicable Term expires, any Customer Data it wishes to retain.
9.3 Deferred Deletion Instruction. To the extent any Customer Data covered by the deletion instruction described in Section 9.2 (Deletion on Term Expiry) is also processed, when the applicable Term under Section 9.2 expires, in relation to an Agreement with a continuing Term, such deletion instruction will only take effect with respect to such Customer Data when the continuing Term expires. For clarity, this Data Processing Amendment will continue to apply to such Customer Data until its deletion by the Company.
9.4 Subject to this section 9 Company 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.
9.5 Company shall provide written certification to the applicable Data Subject or Customer that it has fully complied with this section 9 within 10 business days of the Cessation Date.
10.1 Subject to this section 10, Company 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 an auditor in relation to the Processing of the Company Personal Data.
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.
11.1 The Company 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. 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.
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:
disclosure is required by law;
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.
Governing Law and Jurisdiction
13.1 This Agreement is governed by the laws of the Republic of India.
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 Republic of India.