DATA PROCESSING AGREEMENT
Last Updated: 04 September 2019
The provision of the Services by Chartyn Analytics Limited ("Chartyn") may involve processing personal data on your behalf. Under EU Regulation 2016/679 General Data Protection Regulation (the "GDPR") (Article 28, paragraph 3), an agreement in writing should be entered into between a customer and any organisation which processes personal data on its behalf governing the processing of that data. In ensuring compliance with the GDPR provisions, this Data Processing Agreement ("DPA" ) shall apply to the processing and holding of your personal data by Chartyn. This DPA forms part of the Terms of Service pursuant to which Chartyn will provide you the Services.
"Data Processor" shall have the meanings given to it in Article 4 of the GDPR;
"Data Subject" shall have the meaning given to it in Article 4 of the GDPR;
"ICO" means the UK's supervisory authority, the Information Commissioner's Office;
"Personal Data" means all such "personal data", as defined in Article 4 of the GDPR for as long as it is directly applicable in the United Kingdom and any successor legislation in the United Kingdom to the GDPR, as is, or is to be, Processed by Chartyn on behalf of you, as described in the Terms;
"Processing", "Process" "Processed" and "Processor" shall have the meaning given to them in Article 4 of the GDPR;
"Services" means those services provided by Chartyn to you and which you uses for the purposes described in the Terms;
"Sub-Processor" means a sub-processor appointed by Chartyn to Process the Personal Data; and
"Sub-Processing Agreement" means an agreement between Chartyn and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor, as described in Clause 9.
2. PROCESSING OF PERSONAL DATA
Chartyn shall only process the Personal Data received from you (a) solely for the purposes of its performance of the Service and not for any other purpose; (b) to the extent and in such a manner as is necessary for those purposes; and (c) strictly in accordance with your express authorisation.
3. DATA PROTECTION COMPLIANCE
All instructions given by you to Chartyn shall be made in writing and shall at all times be in compliance with the GDPR and other applicable laws. Chartyn shall act only on such written instructions from you unless Chartyn is required by law to do otherwise (as per Article 29 of the GDPR). Both Parties shall comply at all times with the GDPR and other applicable laws and shall not perform their obligations under the DPA or any other agreement or arrangement between themselves in such way as to cause either Party to breach any of its applicable obligations under the GDPR.
You hereby warrant, represent, and undertake that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and Processing.
Chartyn shall ensure that its obligations under the DPA are satisfactorily performed in accordance with any and all applicable legislation from time to time in force in the United Kingdom (including, but not limited to, the GDPR) and any best practice guidance issued by the ICO. Chartyn shall provide all reasonable assistance (at your cost) to you in complying with its obligations under the GDPR with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.
When processing the Personal Data on behalf of you, Chartyn shall:
4. RIGHTS OF DATA SUBJECT - ACCESS, COMPLAINTS, AND BREACHES
To the extent you, in your use or receipt of the Services, do not have the ability to correct, amend, restrict, block or delete Personal Data, Chartyn comply with requests by you to facilitate such actions. Chartyn shall promptly notify you if it receives a request from a Data Subject for access to, correction, amendment, deletion of or objection to the Processing of that person's Personal Data. Chartyn shall not respond to any such Data Subject request without your prior written consent except to confirm that the request relates to you. Chartyn shall provide you with commercially reasonable cooperation and assistance in relation to handling of a Data Subject's request to the extent you do not have access to such Personal Data through its use or receipt of the Services, including by:
If Chartyn becomes aware of any form of Personal Data breach, Chartyn will immediately (i) notify you of the breach; (ii) investigate the breach and provide you information about the breach; (iii) take reasonable steps to mitigate the effects and to minimise any damage resulting from the breach; and (iv) co-operate with you and take such reasonable commercial steps as are directed by you to assist in the investigation, mitigation and remediation of each such breach.
5. DATA PROTECTION OFFICER
If you have appointed a Data Protection Officer in accordance with Article 37 of the GDPR, you shall provide the contact details of said officer to Chartyn.
6. LIABILITY AND INDEMNITY
You shall be liable for, and shall indemnify (and keep indemnified) Chartyn in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, Chartyn and any Sub-Processor arising directly or in connection with:
Subject to the Terms, Chartyn shall be liable for any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against you arising directly or in connection with Chartyn's Personal Data Processing activities that are subject to the DPA only to the extent that the same results from Chartyn's breach of the DPA and not to the extent that the same is or are contributed to by any breach of the DPA by you.
You shall not be entitled to claim back from Chartyn or Sub-Processor any sums paid in compensation by you in respect of any damage to the extent that you are liable to indemnify Chartyn or Sub-Processor under Clause 9.
Nothing in the DPA (and in particular, this paragraph) shall relieve either Party of, or otherwise affect, the liability of either Party to any data subject, or for any other breach of that Party's direct obligations under the GDPR.
7. INTELLECTUAL PROPERTY RIGHTS
All copyright, database rights, and other intellectual property rights subsisting in the Personal Data (including but not limited to any updates, amendments, or adaptations to the Personal Data made by either you or Chartyn) shall belong to you or to any other applicable third party from whom you have obtained the Personal Data under licence (including, but not limited to, data subjects, where applicable). Chartyn is licensed to use such Personal Data under such rights only for the term of the Terms of Service, for the purposes of the Service, and in accordance with the DPA.
Chartyn shall maintain the Personal Data in confidence, and in particular, unless you have given written consent for Chartyn to do so, Chartyn shall not disclose any Personal Data supplied to Chartyn by, for, or on behalf of, you to any third party. Chartyn shall not process or make any use of any Personal Data supplied to it by you otherwise than in connection with the provision of the Service to you.
Chartyn shall ensure that all personnel who are to access and/or process any of the Personal Data are contractually obliged to keep the Personal Data confidential.
The obligations set out in in this Clause 8 shall continue for a period of five (5) years after the cessation of the provision of Service by Chartyn to you.
Nothing in the DPA shall prevent either Party from complying with any requirement to disclose Personal Data where such disclosure is required by law. In such cases, the Party required to disclose shall notify the other Party of the disclosure requirements prior to disclosure, unless such notification is prohibited by law.
9. APPOINTMENT OF SUB-PROCESSORS
Chartyn shall have the right to sub-contract any of its obligations or rights under the DPA without the prior written consent of you.
In the event that Chartyn appoints a Sub-Processor, Chartyn shall:
In the event that a Sub-Processor fails to meet its obligations under any Sub-Processing Agreement, Chartyn shall remain fully liable to you for failing to meet its obligations under the DPA.
10. DELETION AND/OR DISPOSAL OF PERSONAL DATA
Chartyn shall, at the written request of you, delete (or otherwise dispose of) the Personal Data or return it to you in the format(s) reasonably requested by you within a reasonable time after the earlier of the following:
Following the deletion, disposal, or return of the Personal Data under this clause, Chartyn shall delete (or otherwise dispose of) all further copies of the Personal Data that it holds, unless retention of such copies is required by law, in which case Chartyn shall inform you of such requirement(s) in writing.
Chartyn accepts the obligations in the DPA in consideration of the payment of the subscription fee from you under the Terms of Service.
12. LAW AND JURISDICTION
The DPA (including any non-contractual matters and obligations) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between the Parties relating to the DPA shall fall within the dispute resolution procedure pursuant to Terms of Service.