DATA PROCESSING AGREEMENT
This Data Processing Agreement ("DPA") forms part of the [CONTRACT_NAME] ("Principal Agreement") between:
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Limoverse Technologies LLC service provider company duly incorporated and existing under the rules and regulations of Dubai, UAE with licence number 1082384 and having its operational offices at 201-207, Latifa Towers, Sheikh Zayed Road, Dubai, United Arab Emirates (the "Data Controller" or "Controller"); and
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[PROCESSOR_NAME], a company registered in [COUNTRY] with registration number [NUMBER] whose registered office is at [ADDRESS] (the "Data Processor" or "Processor")
(each a "Party" and together the "Parties")
WHEREAS:
(A) The Controller operates a global health and wellness eco-system built on Blockchain using Decentralized Ledger Technology.
(B) The Processor provides [SERVICES_DESCRIPTION].
(C) The Parties have entered into the Principal Agreement under which the Processor provides services to the Controller.
(D) The provision of the services under the Principal Agreement involves the processing of personal data by the Processor on behalf of the Controller.
(E) The Parties wish to set out their rights and obligations in relation to such processing of personal data in accordance with applicable data protection laws.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this DPA, unless the context otherwise requires:
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"Applicable Laws" means (a) European Union or Member State laws with respect to any Controller Personal Data in respect of which any Controller Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Controller Personal Data in respect of which any Controller Group Member is subject to any other Data Protection Laws;
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"Controller Personal Data" means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Principal Agreement;
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"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
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"EEA" means the European Economic Area;
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"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;
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"GDPR" means EU General Data Protection Regulation 2016/679;
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"Restricted Transfer" means a transfer of Controller Personal Data from the Controller to the Processor, or onward transfer of Controller Personal Data from the Processor to a Subprocessor, in each case, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses set out in Schedule 2 to this DPA;
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"Services" means the services and other activities to be supplied to or carried out by or on behalf of the Processor for the Controller pursuant to the Principal Agreement;
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"Subprocessor" means any person (including any third party and any Processor Affiliate, but excluding an employee of Processor or any of its sub-contractors) appointed by or on behalf of Processor to Process Personal Data on behalf of any Controller Group Member in connection with the Principal Agreement.
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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 CONTROLLER PERSONAL DATA
2.1 The Processor shall: (a) comply with all applicable Data Protection Laws in the Processing of Controller Personal Data; and (b) not Process Controller Personal Data other than on the documented instructions of the Controller unless Processing is required by Applicable Laws to which the Processor is subject, in which case the Processor shall to the extent permitted by Applicable Laws inform the Controller of that legal requirement before the relevant Processing of that Personal Data.
2.2 The Controller instructs the Processor to process Controller Personal Data as necessary: (a) to provide the Services to the Controller; and (b) to perform the Processor's obligations and exercise the Processor's rights under the Principal Agreement.
2.3 Annex 1 to this DPA sets out certain information regarding the Processor's Processing of the Controller Personal Data as required by article 28(3) of the GDPR.
3. PROCESSOR PERSONNEL
The Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller 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 Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4. SECURITY
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 Controller 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.
In assessing the appropriate level of security, the Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. SUBPROCESSING
5.1 The Controller authorises the Processor to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the Principal Agreement.
5.2 The Processor may continue to use those Subprocessors already engaged by the Processor as at the date of this DPA, subject to the Processor meeting the obligations set out herein.
5.3 The Processor shall give the Controller prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within [TIME_PERIOD] of receipt of that notice, the Controller notifies the Processor in writing of any objections (on reasonable grounds) to the proposed appointment, the Processor shall not appoint (or disclose any Controller Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Controller and the Controller has been provided with a reasonable written explanation of the steps taken.
5.4 With respect to each Subprocessor, the Processor shall (a) before the Subprocessor first Processes Controller Personal Data (or, where relevant, in accordance with section 5.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Controller Personal Data required by the Principal Agreement; (b) ensure that the arrangement between on the one hand (i) the Processor, or (ii) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Controller Personal Data as those set out in this DPA and meet the requirements of article 28(3) of the GDPR; (c) provide to the Controller for review such copies of the Processor's agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this DPA) as the Controller may request from time to time.
5.5 The Processor shall ensure that each Subprocessor performs the obligations under sections 2.1, 3, 4, 6.1, 7.2, 8 and 10, as they apply to Processing of Controller Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of the Processor.
6. DATA SUBJECT RIGHTS
6.1 Taking into account the nature of the Processing, the Processor shall assist the Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller's obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 The Processor shall: (a) promptly notify the Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and (b) ensure that it does not respond to that request except on the documented instructions of the Controller or as required by Applicable Laws to which the Processor is subject, in which case the Processor shall to the extent permitted by Applicable Laws inform the Controller of that legal requirement before the Processor responds to the request.
7. PERSONAL DATA BREACH
7.1 The Processor shall notify the Controller without undue delay upon the Processor becoming aware of a Personal Data Breach affecting Controller Personal Data, providing the Controller with sufficient information to allow it to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 The Processor shall co-operate with the Controller and take such reasonable commercial steps as are directed by the Controller 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 Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Controller reasonably considers to be required of it 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 Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Processor.
9. DELETION OR RETURN OF CONTROLLER PERSONAL DATA
9.1 Subject to sections 9.2 and 9.3, the Processor shall promptly and in any event within [TIME_PERIOD] of the date of cessation of any Services involving the Processing of Controller Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Controller Personal Data.
9.2 Subject to section 9.3, the Controller may in its absolute discretion by written notice to the Processor within [TIME_PERIOD] of the Cessation Date require the Processor to (a) return a complete copy of all Controller Personal Data to the Controller by secure file transfer in such format as is reasonably notified by the Controller to the Processor; and (b) delete and procure the deletion of all other copies of Controller Personal Data Processed by the Processor. The Processor shall comply with any such written request within [TIME_PERIOD] of the Cessation Date.
9.3 The Processor may retain Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that the Processor shall ensure the confidentiality of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
9.4 The Processor shall provide written certification to the Controller that it has fully complied with this section 9 within [TIME_PERIOD] of the Cessation Date.
10. AUDIT RIGHTS
10.1 Subject to sections 10.2 to 10.4, the Processor shall make available to the Controller on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Controller or an auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor.
10.2 Information and audit rights of the Controller only arise under section 10.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
10.3 The Controller shall give the Processor reasonable notice of any audit or inspection to be conducted under section 10.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Processor's premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. The Processor need not give access to its premises for the purposes of such an audit or inspection: (a) to any individual unless he or she produces reasonable evidence of identity and authority; (b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and the Controller has given notice to the Processor that this is the case before attendance outside those hours begins; or (c) for the purposes of more than [NUMBER] audit or inspection in any calendar year, except for any additional audits or inspections which (i) the Controller reasonably considers necessary because of genuine concerns as to the Processor's compliance with this DPA; or (ii) the Controller is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where the Controller has identified its concerns or the relevant requirement or request in its notice to the Processor of the audit or inspection.
10.4 The Processor may object in writing to an auditor appointed by the Controller to conduct any audit under section 10.1 if the auditor is, in the reasonable opinion of the Processor, not suitably qualified or independent, a competitor of the Processor, or otherwise manifestly unsuitable. Any such objection by the Processor will require the Controller to appoint another auditor or conduct the audit itself.
11. RESTRICTED TRANSFERS
11.1 Subject to section 11.3, the Controller (as "data exporter") and the Processor (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from the Controller to the Processor.
11.2 The Standard Contractual Clauses shall come into effect under section 11.1 on the later of: (a) the data exporter becoming a party to them; (b) the data importer becoming a party to them; and (c) commencement of the relevant Restricted Transfer.
11.3 Section 11.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12. GENERAL TERMS
Governing law and jurisdiction
12.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses (a) the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and (b) this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
12.2 Nothing in this DPA reduces the Processor's obligations under the Principal Agreement in relation to the protection of Personal Data or permits the Processor to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
12.3 Subject to section 12.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
Changes in Data Protection Laws, etc.
12.4 The Controller may: (a) by at least [TIME_PERIOD] written notice to the Processor, from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 11.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law, and (b) propose any other variations to this DPA which the Controller reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.5 If the Controller gives notice under section 12.4(a): (a) the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Controller's notice as soon as is reasonably practicable; and (b) the Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by the Processor to protect the Processor against additional risks associated with the variations made under section 12.4(a).
12.6 If the Controller gives notice under section 12.4(b), the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in the Controller's notice as soon as is reasonably practicable.
12.7 Neither the Controller nor the Processor shall require the consent or approval of any Data Subject to any amendment to this DPA made in accordance with this section 12.
Severance
12.8 Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties' intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
IN WITNESS WHEREOF, this DPA is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.
[Controller]
Signature ______________________________
Name: [NAME]
Title: [TITLE]
Date Signed: [DATE]
[Processor]
Signature ______________________________
Name: [NAME]
Title: [TITLE]
ANNEX 1: DETAILS OF PROCESSING OF CONTROLLER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Controller Personal Data
[DESCRIBE SUBJECT MATTER AND DURATION]
The nature and purpose of the Processing of Controller Personal Data
[DESCRIBE NATURE AND PURPOSE]
The types of Controller Personal Data to be Processed
[LIST TYPES OF PERSONAL DATA]
The categories of Data Subject to whom the Controller Personal Data relates
[DESCRIBE CATEGORIES]
The obligations and rights of Controller
The obligations and rights of Controller are set out in the Principal Agreement and this DPA.
ANNEX 2: STANDARD CONTRACTUAL CLAUSES
[INCLUDE STANDARD CONTRACTUAL CLAUSES HERE]
Note: The Standard Contractual Clauses (SCCs) are pre-approved model data protection clauses adopted by the European Commission. They should be included in full as part of this agreement when transfers of personal data are made from the EEA to non-EEA countries. The most current version of the SCCs should be used.
ANNEX 3: LIST OF SUB-PROCESSORS
[LIST APPROVED SUB-PROCESSORS]
1. [SUB-PROCESSOR NAME]
- Processing activities: [DESCRIBE]
- Location of processing: [COUNTRY]
2. [SUB-PROCESSOR NAME]
- Processing activities: [DESCRIBE]
- Location of processing: [COUNTRY]
[ADD MORE AS NEEDED]
ANNEX 4: TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES
[DESCRIBE IN DETAIL THE TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES IMPLEMENTED BY THE PROCESSOR]
Examples may include:
1. Pseudonymization and encryption of personal data
2. Measures to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services
3. Measures to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
4. Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing
5. Access control and authentication measures
6. Network security measures
7. Physical security measures
8. Data backup procedures
9. Data retention and deletion practices
10. Incident response and management procedures
[PROVIDE DETAILED DESCRIPTIONS OF EACH MEASURE]