UK Data Processing Addendum (ENG).pdf

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Data Processing Addendum

This Data Processing Addendum (the “DPA”) supplements the Agreement, or any other agreement between Customer and Zivver governing Customer’s use of the Zivver-service (collectively, the “Agreement”) when the GDPR applies to your use of the Zivver-Service to process any Personal Data.

This DPA is an agreement between you and the entity you represent (“Customer” or “you”) and the applicable Zivver contracting entity under the offer or other agreement (“Zivver”). Customer and Zivver hereinafter jointly referred to as "Parties", and individually "Party";

WHEREAS:

(A) The DPA has been concluded for the delivery of the Zivver-service by Zivver to Customer, for the execution of the Agreement;

(B) Zivver may process certain Personal Data on behalf of Customer pursuant to the Agreement;

(C) Customer is hereby deemed to be a controller within the meaning of Article 4 (7) of the General Data Protection Regulation, which for the purpose of this DPA shall be deemed to include the UK Data Protection Act 2018 and its implementing legislation (“GDPR”) and Zivver is hereby deemed to be a processor within the meaning of article 4 (8) of the GDPR; and

(D) this DPA contains the conditions and respective rights and obligations of the Parties regarding the Processing of Personal Data within the meaning of article 28 (3) of the GDPR.

HAVE AGREED AS FOLLOWS:

1. Definitions

1.1. The definitions in this DPA (written with a capital letter) regarding the Processing of Personal Data (such as but not limited to: Personal Data, Processing, Data Subject, Controller, Processor and Third Party) shall have the meaning of the corresponding definitions in the GDPR.

1.2. Applicable Law: all laws and regulations applicable to the Processing of Personal Data, including but not limited to the GDPR and its Dutch Implementation Act.

2. Processing of Personal Data

2.1. Zivver delivers its services on the basis of the Agreement as a Processor for Customer. Customer remains the Controller regarding all Personal Data that is processed based

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on the Agreement. The categories of Personal Data and Data Subjects and the purpose of the Processing by Zivver are described in Annex 1 (Personal Data and Processing Activities).

2.2. The subject matter of this DPA is the Processing of Personal Data for the purpose of enabling the use of the Zivver service.

3. Controller’s obligations

3.1. As a Controller, Customer must comply with its obligations under Applicable Law, the Agreement and this DPA.

3.2. Controller instructs Processor to Process the Personal Data on behalf of Controller and in accordance with Applicable Law. Controller’s Processing instructions are laid down in Annex 1 (Personal Data and Processing Activities).

3.3. Controller may give additional or adjusted Processing instructions, provided that such instructions are in accordance with the conditions of the Agreement and this DPA, and these are reasonable and in accordance with Applicable Law. Controller shall notify Processor of such instructions in writing.

4. Processor’s obligations

4.1. As a Processor, Zivver must comply with its obligations under the Agreement, this DPA and Applicable Law.

4.2. Processor shall (a) act in accordance with the written instructions of Controller; (b) refrain from Processing the Personal Data for its own purposes; and (c) only Process the Personal Data to the extent necessary for the performance of the activities of Processor pursuant to the Agreement; unless a European or Member State law applicable to Processor obliges him to act differently and Processor informs Controller thereof without undue delay in accordance with Article 4.5 (ii).

4.3. If, during the term of this DPA, Processor receives a request from a Data Subject regarding his/her Personal Data pursuant to Chapter III of the GDPR, Processor shall refer the Data Subject to Controller without undue delay. Controller is at all times responsible for answering such requests. Processor shall provide the assistance reasonably required by Controller in order to enable Controller to fulfill its obligations with regard to responding to requests from Data Subjects to exercise their rights.

4.4. Processor shall provide the assistance required by Controller in its capacity as Processor to enable Controller to perform a Data Protection Impact Assessment and a possible subsequent prior consultation from a Supervisory Authority.

4.5. Processor shall inform Controller without undue delay in the following cases:

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(i) a European or Member State law applicable to Processor prevents Processor from complying with the written instructions from Controller, unless such legislation prohibits Processor from providing such information;

(ii) Processor holds the opinion that an instruction from Controller infringes Applicable Law.

4.6. Upon termination of the Agreement or, if earlier, after the end of the delivery of Processing Activities, Processor shall return all Personal Data to Controller in a common format and/or delete all copies of such Personal Data, at the discretion of Controller, unless a European or Member State law applicable to Processor prohibits Processor to return or delete Personal Data.

4.7. Processor may charge reasonable costs for providing assistance to Controller with complying with its obligations under Applicable Law.

5. Subprocessors

5.1. By this DPA, Controller gives specific permission for the engagement of the third parties referred to in Annex 1 as Subprocessor for the performance of Processing Activities arising from the Agreement and this DPA. In addition, if Processor intends to engage a new or different Subprocessor, Controller hereby grants general authorization, provided that Processor informs Controller of any such intended changes. Controller may object, in writing and substantiated by well-founded arguments, to the engagement or modification of this Subprocessor. If the Controller objects, the Parties shall enter into consultation to find a workable solution.

5.2. Processor shall impose the engaged Subprocessor(s) corresponding obligations as agreed between Controller and Processor on the basis of the DPA.

5.3. Processor remains responsible for any acts or omissions on the part of a Subprocessor that causes Processor to breach its obligations under the Agreement or this DPA.

6. Confidentiality

6.1. Processor shall maintain confidentiality with regard to the Personal Data. Processor is not permitted to provide Personal Data to third parties or affiliated parties, except: (a) if this is permitted under the Agreement; or (b) in accordance with Article 5; or (c) with the explicit consent of Controller; or (d) in case of a statutory obligation to provide Personal Data to a third party. When Processor is legally obliged to provide Personal Data to a third party, it will inform Controller thereof before such provision, unless Applicable law prohibits Processor to do so on important grounds of public interest.

6.2. Processor shall limit the distribution of the Personal Data to those employees of Processor to whom the Processing of Personal Data is assigned pursuant to the Agreement, and only to the extent that it is necessary for them to be aware of and/or

take note of the Personal Data (“need to know” basis).

7. Security and Personal Data Breaches

7.1. Processor shall implement appropriate technical and organizational measures to protect the confidentiality, integrity and availability of Personal Data that are in line with Applicable law, including protection against destruction, loss, unauthorized disclosure or access or any form of unlawful processing.

7.2. Annex 2 (Security Measures) describes the measures that Processor has implemented and shall maintain. Processor may update or adjust the Security Measures from time to time, provided that such updates and/or adjustments do not lead to a reduction in the level of protection.

7.3. Processor shall inform Controller without undue delay of a Personal Data Breach (which is understood as a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, transmitted, stored or otherwise processed Personal Data). Processor shall adhere to procedures aimed at discovering, responding to and resolving Personal Data Breaches.

7.4. The notification contains at least a description of:

(i) the nature of the Personal Data Breach, where possible stating the categories and the estimated number of Data Subjects and Personal Data involved;

(ii) whether the Personal Data are encrypted, anonimyzed or otherwise made incomprehensible;

(iii) the name and contact details of the Data Protection Officer or another contact point where more information can be obtained;

(iv) the likely consequences of the Personal Data Breach; and

(v) the measures that Processor has taken or proposes to take to resolve the Personal Data Breach, including, where appropriate, measures to limit any adverse consequences thereof.

7.5. Controller is responsible for compliance with its (statutory) obligations to notify. Processor shall, on request of Controller, assist Controller in order to ensure that the relevant Supervisory Authority and/or Data Subjects are adequately informed.

8. Audit

8.1. Controller has the right to have an audit performed by an independent third party who shall be bound by confidentiality to verify compliance with this DPA.

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8.2. The audit may only take place after Controller has requested, assessed and submitted reasonable arguments in writing that justify an audit initiated by Controller. Such an audit is justified if the similar reports present at Processor do not provide sufficient or conclusive information about Processor’s compliance with this DPA or if Controller has reasonable doubt about such compliance.

8.3. The audit initiated by Controller will take place at least two weeks after prior announcement by Controller on a date and time to be determined by the Parties in joint consultation.

8.4. The costs of the audit will be borne by Controller.

9. Transfer of Personal Data outside the UK/EEA

9.1. The Parties acknowledge that Applicable Law contains restrictions with regard to the transfer of Personal Data from the UK and countries in the European Economic Area (“EEA”) to countries or organizations outside the UK and EEA that do not guarantee an adequate level of protection and that are not considered safe by the European Commission, including making the Personal Data accessible from such a country or such an organization (“Transfer”).

9.2. Processor may not Transfer Personal Data, except to the extent that:

(i) Controller has specifically given consent for the Transfer prior to Transferring Personal Data;

(ii) a European (including UK) or Member State law applicable to Processor obliges it to do so and Processor informs the Controller thereof in accordance with Article 4.5 (ii) without undue delay. To the extent reasonably possible, Processor shall comply and shall see to it that its Subprocessors comply with the rules regarding Transfer of Personal Data as laid down in Applicable Law.

9.3. If Zivver’s compliance with any data protection laws applicable to Transfers of Personal Data outside the UK or EEA is affected by circumstances outside of Zivver’s control, including if a legal instrument for international data transfers is invalidated, amended, or replaced, or the withdrawal from the United Kingdom from the European Union, then Zivver and Customer will work together in good faith to reasonably resolve such noncompliance, including to the extent applicable, entering into any legal instruments such as the standard contractual clauses, which may be necessary to achieve compliance with the GDPR or the UK Data Protection Act 2018.

9.4. Exclusively applicable in case of Zivver Academy (e-learning): subprocessor EasyGenerator hosts the data within the EEA, but uses some sub-processors outside the EEA/UK. Transfers to these sub-processors are subject to standard contractual clauses. By agreeing to this DPA, Customer consents to the Transfer of Personal Data outside the EEA/UK in accordance with https://www.easygenerator.com/en/scc/.

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10. Term and termination

10.1. This DPA forms an integral part of the Agreement and terminates automatically upon termination of the Agreement.

10.2. If any provisions in this DPA are declared void, this will not affect the validity of the entire DPA. For the purpose of replacing such a provision, the Parties will lay down one or more new provision(s) that reflect the purpose of the original provision as far as possible under the law.

11. Applicable law and dispute settlement

11.1. This DPA and the execution thereof are governed by the laws of England and Wales.

11.2. All disputes that may arise between the Parties in connection with this DPA, will be submitted to the courts of England and Wales.

Annex 1

Personal Data and Processing Activities

Personal data by purpose of processing

To create a profile & authentication
Profile information
Email address
Credentials
Signature image (only if Zivver eSignatures is used)

To send a message & provide the communication log

Email address sender
Email address recipient
IP address sender
Phone number recipient - when applicable
Subject of message
Attachment names

To apply the automated business rules and anti-virus scanner
Content message
Content attachment
after this data is processed for the above purpose it is stored fully encrypted and can only
be decrypted by the users

To improve the product

Event data (data about how the product is used)

To make the receipt of the message demonstrable (optional feature)
Date and time of the sending of the message by sender
Date and time of the decryption of the message by recipient

Generating and storing digital signatures (optional feature)
Digital signature of sender and/or recipient
Date and time of signing by sender and/or recipient

Participating in e-Learning Zivver Academy (optional feature)
Name and email address of participants
Name and date of e-learnings followed
Answers of participants on test questions on how to use Zivver products

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Answers of participants on feedback questions regarding the e-learning
Optional: a video message of the internal ‘champion’ (only applicable to custom build elearnings)

Processing Activities & Sub – Processors

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Security Measures

The non-exhaustive list below provides an overview of the key security measures in place at Zivver:

• Zivver complies with best practices in the field of privacy protection and has received the 'Privacy Verified' certificate for this (available on www.zivver.com).

• Zivver has an Information Security Management System that is certified for ISO27001 and NEN7510.

• An external expert assesses the safety of the Zivver website, plug-in and web application semi-annually.

• For the storage and processing of data, Zivver uses suppliers with whom processing agreements have been concluded.

• Zivver uses servers in the European Economic Area (EEA) for data storage. The data does not leave the EEA.

• Employees of Zivver are in the possession of a certificate of conduct and are contractually bound by confidentiality, on pain of dismissal, a fine and compensation.

• Access to data is on a need-to-know basis, recorded within an authorization matrix, included logging of activities.

• Messages and attachments are encrypted in a way that only sender and receiver have access. Zivver itself also has no access to this information.

• Zivver uses TLS connections on its website and for this its plug-in and web application.

• The authenticity of the Zivver plug-in can be verified by means of a certificate.

• Zivver monitors capacity utilization of processors and servers to achieve very high availability.

• Additional security, such as through 2FA, is required to gain access to a Zivver account. 2FA is available when sending individual messages.

• Zivver has a Privacy and Security Officer who supervises the enforcement of the information security policy.

• Zivver has a protocol for identifying and following up incidents.

• Zivver encrypts all information processing equipment.

• Zivver uses separate development and production environments.

• Zivver ensures logging of message traffic and frequent backups of the operational databases.