GDPR Data Processing Addendum

GDPR Data Processing Addendum

(A) This Data Processing Addendum (“DPA”) specifies the data protection obligations of the parties, which arise from contract data processing on behalf of the Client, as stipulated in the ABBYY Cloud Service Agreement available through https://www.abbyy.com/legal/cloud-terms-of-service/ or other agreement between the Client and ABBYY governing the Client’s use of the ABBYY Services (the “Agreement”). It applies to all activities performed in connection with the Agreement in which the ABBYY staff or a third party acting on behalf of ABBYY may come into contact with Personal Data.

(B) This DPA sets out the additional terms, requirements and conditions on which ABBYY will process Personal Data when providing services under the Agreement. This DPA contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) (“GDPR”).

(C) All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.

1. Definitions

1.1. “Сontroller” has the same meaning under the Data Protection Laws.

1.2. “Data Protection Laws” means any applicable law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, relating to data security, data protection and/or privacy, including, but not limited to, the General Data Protection Regulation 2016/679 (“GDPR”) and all other laws implementing or supplementing the GDPR including the German Federal Data Protection Act 2017 (“BDSG”).

1.3. “Processing” means processing of Personal Data as defined under the Data Protection Laws, including the storage, amendment, transfer, blocking or erasure of personal data by ABBYY acting on behalf of the Client.

1.4. “Processor” has the same meaning under the Data Protection Laws.

1.5. “ABBYY” in this DPA means ABBYY Europe GmbH (Friedenstraße 22b 81671 Munich, Germany) or ABBYY UK Limited (a company duly incorporated under the laws of UK having its principle place of business at 70 Gracechurch Street, 3rd Floor, London, EC3V 0HR, United Kingdom) as described in the Agreement.

1.6. “Instruction” means the written instruction, issued by Client to ABBYY, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, de-personalizing, blocking, deletion, making available). Instructions shall initially be specified in this DPA and may, from time to time thereafter, be amended, amplified or replaced by Client in separate written instructions (individual instructions).

1.7. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

1.8. “Standard Contractual Clauses” or “SCC” means standard contractual clauses pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 or (if applicable) any future clauses issued by the EU for the transfer of personal data to non-EU (sub) processors, and replacing or modifying the clause in the wording as issued by the EU, or any other clauses mutually agreed by the parties.

1.9. “UK Addendum” means the International Data Transfer Addendum to the EU SCC issued by the UK Information Commissioner under section 119A(1) Data Protection Act 2018.

The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

A reference to writing or written includes faxes and email.

In the case of conflict or ambiguity between:

(a) any provision contained in the body of this DPA and any provision contained in the Annexes, the provision in the body of this DPA will prevail;

(b) any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA will prevail.

2. Scope and Responsibility

2.1. The Client and ABBYY acknowledge that for the purpose of the Data Protection Laws, the Client is the Controller and ABBYY is the Processor. In some circumstances, Client may be a Processor, in which case Client appoints ABBYY as Client’s sub-processor, which shall not change the obligations of either Client or ABBYY under this DPA, as ABBYY will always remain a Processor with respect to the Client in such event.

2.2. Client retains control of the Personal Data and remains responsible for its compliance with its obligations under the applicable Data Protection Laws, including providing any required notices and obtaining any required consents for the lawful Processing of Personal Data made available to or otherwise transferred to ABBYY, and for the processing instructions it gives to ABBYY.

2.3. ABBYY shall process Personal Data on behalf of Client. Processing shall include such actions as may be specified in the Agreement and in the scope of work. Within the scope of the Agreement, Client shall be solely responsible for complying with the statutory requirements relating to the lawfulness of the data processing.

2.4. Based on this responsibility, Client shall be entitled to request that ABBYY, subject to the Data Protection Laws, rectifies, deletes, blocks and makes available Personal Data during and after the term of the Agreement at Client’s cost. ABBYY shall promptly comply with any of Client’s request or instruction requiring the ABBYY to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorized Processing.

2.5. The provisions of this DPA shall also apply if testing or maintenance of automatic processes or of Processing equipment is performed on behalf of Client.

3. ABBYY’s obligations

3.1. ABBYY shall process Personal Data only within the scope of Client’s Instructions as set-out in this DPA, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which ABBYY is subject. In this case, ABBYY shall inform Client of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

3.2. ABBYY will, insofar this is possible, by appropriate technical and organizational measures, reasonably assist Client with meeting Client’s compliance obligations with respect to the rights exercised by data subjects under the Data Protection Laws (particularly the Data Subject’s Rights stated in Chapter 3 of the GDPR and related to Data Subject’s requests), taking into account the nature of the data Processing. Taking into account the nature of Processing and any information available to ABBYY, ABBYY will further assist the Client in ensuring compliance with the obligations pursuant to Articles 32 to 36 GDPR, in particular its obligations to undertake data protection impact assessments and report to and consult with supervisory authorities under the Data Protection Laws. In a situation where requested level of assistance will be excessive or unreasonably burdensome for ABBYY, any such assistance will be exercised at Client’s cost.

3.3. ABBYY shall implement appropriate technical and organizational measures required pursuant to Article 32 GDPR with respect to the Personal Data, 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 data subjects. Such measures shall be designed to ensure a level of security appropriate to the risk in order to protect Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use. Such measures hereunder shall include, but are not limited to taking reasonable steps to achieve the following:

(a) the prevention of unauthorized persons from gaining access to Personal Data Processing systems (physical access control),

(b) the prevention of Personal Data Processing systems from being used without authorization (logical access control),

(c) persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorization (data access control),

(d) Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),

(e) the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems, (entry control),

(f) Personal Data Processed are Processed in accordance with the Instructions (control of instructions),

(g) Persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality,

(h) Personal Data are protected against accidental destruction or loss (availability control),

(i) Personal Data collected for different purposes can be processed separately (separation control).

A measure as referred to in this Section 3.3 (a) to (i) above shall be in particular, but shall not be limited to, the use of appropriate encryption technology. These technical and organizational measures are listed in the Technical and Organizational Measures Annex 3 available at https://www.abbyy.com/legal/cloud-terms-of-service/dpa-universal-gdpr/.

3.4. Contact information:

ABBYY Europe GmbH

Friedenstraße 22b, 81671

Phone: +49-89-69 33 330 Email: privacy_eu@abbyy.com

Attn.: Legal Department

3.5. Client’s Notification Email Address is the same address that is used by the Client for registration within the Service or such other email address designated by Client in writing to receive certain notifications from ABBYY relating to this DPA.

3.6. If applicable, Client shall retain title as to any carrier media provided to ABBYY as well as any copies or reproductions thereof. ABBYY shall store such media safely and protect them against unauthorized access by third parties. ABBYY shall, upon Client’s request, provide to Client all information on Client’s Personal Data and information. ABBYY shall be obliged to securely delete any test and scrap material based on an Instruction issued by Client on a case-by-case basis. Where Client so decides, ABBYY shall hand over such material to Client or store it on Client’s behalf.

3.7. ABBYY shall provide reasonable assistance to the Client with any data protection impact assessment which the Client is required to undertake in order to Comply with Articles 35 and 36 of GDPR, in each case solely in relation to the processing of Personal Data and taking into account the nature of the Processing and information available to ABBYY and shall make available to Client on request such information as is reasonably necessary to demonstrate its compliance with this DPA and its obligations under Article 28 of GDPR and shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client for the purpose of demonstrating compliance by ABBYY with its obligations under Data Protection Laws in respect of the Personal Data. ABBYY may object to the deployment of a specific auditor if such auditor (i) is not subject to confidentiality regarding the results of such audit (except vis-à-vis ABBYY and Client), (ii) is a competitor of ABBYY, (iii) is affiliated with a competitor of ABBYY.

3.8. Data transfers: Depending on the Data Processing Location chosen by the Client (as set forth in the Agreement), the Personal Data of the Client may be processed in a third country pursuant to adequate safeguards under Art. 46 GDPR including, but not limited to execution of Standard Contractual Clauses or an approved code of conduct or other appropriate safeguards. ABBYY has valid and actual Processor-to-Processor SCCs in place with all sub-processors located outside the European Economic Area where required. Where personal data is transferred from the UK to a third country in the absence of other safeguards provided by art. 46 of the UK GDPR, ABBYY has UK Addendum that apply in addition to the EU SCC, in respect of such transfers with its sub-processors. 

3.9. Exclusive Trial Service’s provisions. Based on the section 2.5. (f) of the Agreement, ABBYY may use Personal Data for its own R&D purposes which go beyond of Client Instructions under this DPA. In such case ABBYY becomes independent data Controller. Retention periods set out for Uploaded Data are only applicable for the data processing under the Client’s Instructions. 

3.10. Exclusive Trial Skills and Royalty-free Skill’s provisions in ABBYY Vantage. ABBYY may use Personal Data processed in such Skills for its own R&D purposes which go beyond of Client Instructions under this DPA. In such case ABBYY becomes independent data Controller. Retention periods set out for Uploaded Data are only applicable for the data processing under the Client’s Instructions. 

4. Client’s obligations

4.1. Client shall be separately responsible for conforming with such statutory data protection regulations including the Data Protection Laws as are applicable to it and shall ensure that the Personal Data may lawfully be processed by ABBYY under the Agreement. Client agrees to comply with additional terms set out in the Agreement in relation to End User consent for data processing in ABBYY Proof of Identity.

4.2. Client shall inform ABBYY without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data detected during a verification of the results of such Processing or otherwise arising following the date of this DPA.

4.3. Client shall be obliged to maintain the register as defined in Article 30 of GDPR. Client shall promptly notify ABBYY of the exercise of any rights by data subjects affecting the Processing of Personal Data by ABBYY.

4.4. Client shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period set by ABBYY, the measures to return data carrier media or to delete stored data.

4.5. Any additional cost arising out of ABBYY’s performance under Instructions outside the Agreement or otherwise not contemplated by this DPA shall be borne by Client.

5. Audit Obligations

5.1. ABBYY shall provide a copy of its most current security report upon Client’s written request and subject to the confidentiality provisions of the Agreement. If Client requires additional information beyond that which is stated in the Report, Client may contact ABBYY at privacy_eu@abbyy.com to request an on-site audit of the architecture, systems and procedures relevant to the protection of Client Personal Data that are controlled by ABBYY. Notwithstanding of the above, if an audit is excessive or unreasonably burdensome for ABBYY, then Client shall reimburse ABBYY for such excessive or unreasonably burdensome audit at ABBYY's then-current professional services rates, which shall be made available to Client upon request. Before the commencement of any such audit, Client and ABBYY will mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible. Client shall promptly notify ABBYY with information regarding any non-compliance discovered during the course of an audit.

6. Sub-processing

6.1. Client agrees that ABBYY may engage ABBYY’s Affiliates and third-party sub-processors (collectively, “sub-processors”) to Process the Personal Data on ABBYY’s behalf. Client acknowledges that ABBYY’s contractual obligations hereunder, or the parts of the services, will be performed by a subcontractor and consents to use of sub-processors by ABBYY as described in this Section 6 to fulfil its contractual obligations under the Agreement  and to provide certain services on ABBYY’s behalf such as support services. The list of current sub-processors authorized by Client is provided in the Sub-Processors Annex 1 available at https://www.abbyy.com/legal/cloud-terms-of-service/dpa-universal-gdpr/.

6.2. ABBYY undertakes to enter into a written Agreement with any applicable sub-processors and such Agreement will contain the same data protection obligations as set out in this DPA.  ABBYY will remain responsible for its compliance with the obligations stated herein and for any acts or omissions of the
sub-processors.

6.3. ABBYY may, by giving no less than thirty (30) days’ notice to Client, add or make changes to the sub-processors. Client may object to the appointment of an additional sub-processor within fourteen (14) calendar days of such notice on reasonable grounds relating to the protection of the Personal Data, in which case ABBYY shall have the right to cure the objection through one of the following options (to be selected at ABBYY’s sole discretion):

(a) ABBYY will cancel its plans to use the Sub-processor with regard to Personal Data or will offer an alternative to provide the Services without such Sub-processor; or

(b) ABBYY will take the corrective steps requested by Client in its objection (which remove Client’s objection) and proceed to use the sub-processor with regard to Personal Data; or

(c) ABBYY may cease to provide or Client may agree not to use (temporarily or permanently) the particular aspect of the Services that would involve the use of such Sub-processor with regard to Personal Data, subject to a mutual Agreement of the parties to adjust the remuneration for the Services considering the reduced scope of the Services.

6.4. If none of the above options are reasonably available and the objection has not been resolved to the mutual satisfaction of the parties within 30 days after ABBYY’s receipt of Client’s objection, either party may terminate the Agreement and Client will be entitled to a pro-rata refund for prepaid fees for Services not performed as of the date of termination.

7. Data Breach

7.1. ABBYY will notify the Client in the event of a confirmed Personal Data Breach, unless legally restricted. Any delay in notification, as required by law enforcement or due to ABBYY’s legitimate need to thoroughly investigate or address the issue before notifying, shall not be deemed an undue delay.

7.2. Immediately following any Personal Data Breach, the parties will coordinate with each other to investigate the matter. ABBYY will reasonably co-operate with Client in Client's handling of the matter.

7.3. ABBYY will not inform any third party of any Personal Data Breach without first obtaining Client's prior written consent, except when required to do so by Data Protection Laws or any other applicable Union or Member State laws.

7.4. ABBYY will cover all reasonable expenses associated with the performance of the obligations under this Section 7 unless the matter arose from Client's specific instructions, negligence, willful default or breach of the Agreement, in which case Client will cover all reasonable expenses.

7.5. ABBYY will also reimburse Client for actual reasonable expenses that Client incurs when responding to a Personal Data Breach to the extent that ABBYY caused such a Personal Data Breach, including all costs of notice and any remedy.

8. Duties to Inform, Mandatory Written Form, Choice of Law, Duration

8.1. Where Client’s Personal Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while being Processed, ABBYY shall inform Client without undue delay. ABBYY shall, without undue delay, notify to all pertinent parties in such action, that any Personal Data affected thereby is in Client’s sole property and area of responsibility that Personal Data is at Client’s sole disposition.

8.2. No change of or amendment to this DPA and all of its components, including any commitment issued by ABBYY, shall be valid and binding unless made in writing and unless they make express reference to being a change or amendment to these regulations. The foregoing shall also apply to the waiver of this mandatory written form.

8.3. To the extent required by applicable Data Protection Laws, this DPA shall be governed by the law of the applicable jurisdiction. In all other cases, this DPA shall be governed by the laws of the same jurisdiction stated in the Agreement for governing the Agreement.

8.4. The term of this DPA shall follow the term of the Agreement. Upon termination or expiration of the Agreement, ABBYY shall, in accordance with the Agreement, delete or make available to Client for retrieval all relevant Personal Data (including copies) in ABBYY’s possession, save to the extent that ABBYY is required by any applicable Union or Member State law to retain some or all of the Personal Data. In such event, ABBYY shall extend the protections of the Agreement and this DPA to such Personal Data and limit any further processing of such Personal Data to only those limited purposes that require the retention, for so long as ABBYY maintains the Personal Data.

8.5. List of Personal Data elements and purposes can be found in the Personal Data Elements Annex 2 available at https://www.abbyy.com/legal/cloud-terms-of-service/dpa-universal-gdpr/.