By and between WeType Limited (trading under the name WeType and referred to herein as “WeType”), a UK limited company, registered in England (Company Number 09643724) and ................... (the Client).
Reference herein to “Client” shall be to ................... located at ....................
The parties agree to the following, which shall apply during the term of this Client Agreement. This Client Agreement covers all products and services that the Client has purchased or ordered, whether for its own use or for the use of its clients or customers.
All orders are subject to acceptance by WeType.
An order will only be deemed accepted by WeType if it gives confirmation to such effect to the Client.
WeType may in its absolute discretion refuse to accept any order, or provide that acceptance be subject to such conditions as WeType may impose.
--- Data Protection Addendum attached hereto ---
This Data Protection Addendum ("Addendum") forms part of the terms and conditions that comprise the “Client Agreement” between WeType Limited (“WeType”) and ................... (the Client).
The terms used in this Addendum shall have the meanings set forth in this Addendum. Except as modified below, the terms of the Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Client Agreement. Except where the context requires otherwise, references in this Addendum to the Client Agreement are to the Client Agreement as amended by, and including, this Addendum.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
"Applicable Laws" means (a) European Union or Member State laws with respect to any Client Personal Data in respect of which any Client is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Client Personal Data in respect of which the Client is subject to any other Data Protection Laws;
"Client Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of a Client pursuant to or in connection with the Client Agreement;
"Contracted Processor" means WeType or a Subprocessor;
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country, including without limitation the UK Data Protection Act 1988 and any successor thereto;
"EEA" means the European Economic Area;
"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;
"GDPR" means the UK’s General Data Protection Regulation;
"Restricted Transfer" means:
a transfer of Client Personal Data from the Client to a Contracted Processor; or
an onward transfer of Client Personal Data from a Contracted Processor to a Contracted 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).
"Services" means the services and other activities to be supplied to or carried out by or on behalf of WeType for the Client pursuant to the Client Agreement; and
"Subprocessor" means any person (including any third party, but excluding an employee of WeType) appointed by or on behalf of WeType to Process Personal Data on behalf of WeType in connection with the Client Agreement;
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.
The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
Processing of Client Personal Data
comply with all applicable Data Protection Laws in the Processing of Client Personal Data; and
not Process Client Personal Data other than on the Client’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case WeType shall to the extent permitted by Applicable Laws inform the Client of that legal requirement before the relevant Processing of that Personal Data.
instructs WeType (and authorises WeType to instruct each Subprocessor) to process Client Personal Data as reasonably necessary for the provision of the Services and consistent with the Client Agreement; and
warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 2.2.1.
WeType shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Client Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Client Personal Data, as strictly necessary for the purposes of the Client 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.
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, WeType shall in relation to the Client Personal Data implement appropriate technical and organisational 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, WeType shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
The Client authorises WeType 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 Client Agreement.
WeType may continue to use those Subprocessors already engaged by Wetype as at the date of this Addendum, subject to WeType in each case as soon as practicable meeting the obligations set out in section 5.4.
WeType shall give Client prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 30 days of receipt of that notice, Client notifies WeType in writing of any objections (on reasonable grounds) to the proposed appointment. WeType will consult with the Client regarding the use of an alternative Subcontractor:
With respect to each Subprocessor, WeType shall:
before the Subprocessor first Processes Client 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 Client Personal Data required by the Client Agreement;
ensure that the arrangement between WeType and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Client Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;
if that arrangement involves a Restricted Transfer, ensure that the relevant clauses are included within the agreement with the Subprocessor; and
provide to Client for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Client may request from time to time.
WeType shall ensure that each Subprocessor performs the obligations under sections 2.1,3,4,6.1,7.2,8,9 and 10.1, as they apply to Processing of Client Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of WeType.
Data Subject Rights
Taking into account the nature of the Processing, WeType shall assist each Client by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligations, as reasonably understood by Client, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
promptly notify Client if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Client Personal Data; and
ensure that the Contracted Processor does not respond to that request except on the documented instructions of Client or as required by Applicable Laws to which the Contracted Processor is subject, in which case WeType shall to the extent permitted by Applicable Laws inform the Client of that legal requirement before the Contracted Processor responds to the request.
Personal Data Breach
WeType shall notify Client without undue delay upon WeType or any Subprocessor becoming aware of a Personal Data Breach affecting Client Personal Data, providing Client with sufficient information to allow the client to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
WeType shall co-operate with the Client and take such reasonable commercial steps as are directed by the Client to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Data Protection Impact Assessment and Prior Consultation
WeType shall provide reasonable assistance to the Client with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which the Client 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 Client Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Deletion or return of Client Personal Data
Subject to sections 9.2 and 9.3 WeType shall promptly and in any event within 40 days of the date of cessation of any Services involving the Processing of Client Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Client Personal Data.
Subject to section 9.3, the Client may in its absolute discretion by written notice to WeType within 40 days of the Cessation Date require WeType to (a) return a complete copy of all Client Personal Data to Client by secure file transfer in such format as is reasonably notified by Client to WeType; and (b) delete and procure the deletion of all other copies of Client Personal Data Processed by any Contracted Processor. WeType shall comply with any such written request within 40 days of the Cessation Date.
Each Contracted Processor may retain Client 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 WeType shall ensure the confidentiality of all such Client Personal Data and shall ensure that such Client Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
WeType shall make available to the Client on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by the Client or an auditor mandated by the Client in relation to the Processing of the Client Personal Data by the Contracted Processors.
Information and audit rights of the Client only arise under section 10.1 to the extent that the Client 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).
The Client (as "data exporter") and each Contracted Processor, as appropriate, (as "data importer") will act in a manner that reasonably ensures no Restricted Transfer takes place in a way that would knowingly breach applicable Data Protection Law.
Governing law and jurisdiction
The parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Client Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
This Addendum 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 Client Agreement.
Nothing in this Addendum reduces WeType’s obligations under the Client Agreement in relation to the protection of Personal Data or permits WeType to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Client Agreement. Nothing herein shall prevent the right to refer any issue to the relevant Supervisory Authorities (including the UK’s Information Commissioner’s Office).
Subject to section 12.4, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Client 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 Addendum, the provisions of this Addendum shall prevail.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum 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.