Data Processing Agreement

This Data Processing Agreement (“DPA”) is made between the Supplier, hereinafter referred to as “Processor”, and the TomTom entity and its Affiliates, hereinafter to be referred to as “Controller”. The Processor and the Controller are hereinafter jointly referred to as the “Parties” and individually as the “Party”. This DPA consists of two parts, the Data Processing Terms (including the Schedules attached thereto) and the Data Processing Schedule (“DPS”).

This DPA forms an integral part of the Agreement defined in the applicable DPS. In the case of conflict or ambiguity between any provision contained in the Data Processing Terms and any provision contained in the DPS, the DPS shall prevail.

The purpose of this DPA is to describe the rights and obligations of the Parties in relation to the processing of Personal Data under the Agreement. This DPA shall be deemed to take effect from the Effective Date and shall continue in full force and effect until the termination of the provision of the services under the Agreement.

Table of contents

1 Definitions

“Affiliate”: means in relation to TomTom, any other entity controlling, controlled by or under common control with TomTom. The terms “control”, “controlling” and “controlled”, as used in this definition, shall mean the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a majority of the members of the board of directors or similar governing body of such entity.

“Agreement”: means the commercial agreement negotiated and concluded between the Parties or TomTom’s General Terms and Conditions as applicable.

“GDPR”: means the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

“Personal Data”: means data related to an identified or identifiable individual as defined under the GDPR.

“Controller”: means the Party as defined under the GDPR that determines the purposes and means of the processing of personal data or that carries the responsibility of controller by operation of applicable law.

“Data Subject”: means an individual whose Personal Data is being processed under this DPA.

"Data Processing Schedule or DPS”: means the data processing schedule made part of the Agreement describing among others the data categories, data subjects, sub-processors and, if applicable, the Standard Contractual Clauses.

“Processor”: means the Party as defined under the GDPR that processes Personal Data on behalf of the Controller and in line with its instructions.

“Personal Data Breach”: means a breach of security of the Personal Data as defined under the GDPR.

“Information Security Annex or ISA”: means the annex that supplements the Agreement and sets out the technical and organizational measures which the Processor shall implement to safeguard the Personal Data in scope of this DPA.

“Standard Contractual Clauses”: means the standard contractual clauses set out under Commission Decision (EU) 2021/914 of 4 June 2021.

Supervisory Authority”: means an independent public authority as defined under the GDPR.

“Effective Date”: means the date further specified in the Agreement as of which such Agreement has become effective. If the effective date is not specified in the Agreement then it shall be the date of last signature of the Agreement.

2 Scope of processing

The processing of the Personal Data by the Processor shall take place within the framework of this DPA and only to the extent that Controller has instructed the Processor to do so in relation with the Agreement. The Processor processes the Personal Data on behalf of and per the instructions of the Controller. Modifications to the processing of Personal Data under the Agreement are subject to prior mutual agreement.

The Processor shall not use the Personal Data for any purpose other than as described in the Agreement.

3 Type of data

The Controller has defined that the data categories from Data Subjects as specified in the DPS will be processed by the Processor under this DPA.

4 Security

4.1. Technical and organizational measures

The Processor agrees and warrants that it shall implement technical and organizational measures that ensure the security of the Personal Data in compliance with the requirements set out in article 32 of the GDPR and as set out in the Information Security Annex available at tomtom.com. Any change in the Processor’s security policies and procedures or the addition or removal of a sub-processor by the Processor should not negatively affect the level of security. Substantial changes to such measures that diminish the level of security shall only be valid if prior agreed between the Parties in writing.

4.2. Audits and inspections

Controller is entitled to directly audit or appoint a third party independent auditor in the possession of the required professional qualifications and bound by a duty of confidentiality to inspect Processor’s and sub-processor’s compliance with this DPA and the applicable data protection legislation.
Controller’s right to audit shall be subject to giving the Processor at least thirty (30) days prior written notice of any such audit, except in the situations where an emergency audit has to take place, due to a Personal Data Breach or an order from a Supervisory Authority. Each Party shall bear its own costs for the audit, unless the audit reveals a non-conformity, in which case the Processor shall bear the cost of the audit together with any costs incurred to remediate the non-conformity.

4.3. Confidentiality

The Personal Data shall be treated as confidential information subject to at least the same degree of protection as the Processor applies to its own confidential information. This includes without limitation ensuring that the Processor:

4.3.1. prevents unauthorized persons from gaining access to data processing systems with which Personal Data are processes or used;
4.3.2. ensure that persons entitled to use a data processing system have access only to the Personal Data to which they have a right of access;
4.3.3. ensure that it is possible to check and establish whether and by whom Personal Data has been input into data processing systems, modified or removed.

4.4. Notification of Data Breaches

In case of a Personal Data Breach the Processor will take all adequate remedial measures immediately and must promptly provide Controller with all the relevant information and assistance as requested by Controller regarding the actual or suspected Personal Data Breach. The notification of the Personal Data Breach shall take place without undue delay and in any event within twenty-four (24) hours after the Processor becomes aware of the Personal Data Breach. The notification shall be done by contacting the Controller via the contact details as set forth in the DPS.
Without prejudice to the foregoing, the Processor shall notify any data security breach timely to the Controller in accordance with the ISA. The notification of a data security breach to Controller will, at a minimum, include:

4.4.1. a description of the security breach, including the date and time the security breach was discovered;
4.4.2. an overview of the Personal Data that was (potentially) lost or unlawfully processed as a result of the security breach;
4.4.3. information on the consequences of security breach; and
4.4.4. a description of the measures taken by Processor to limit the consequences of the data security breach.

5 Assistance to the controller

Processor shall deal promptly and properly with all inquiries from the Controller relating to its processing of Personal Data, include without limitation:

5.1. Regulatory and compliance support: by providing such cooperation (including access to its facilities and provision of compliance documentation) as the Controller may reasonably request.

5.2. Rights of Data Subjects support: by assisting the Controller and providing information about the collection, processing or usage of Personal Data to a Data Subject, including by providing support with audits and inspections as set out in clause 5.2.

5.3. Rectification, deletion and blocking of data: upon instruction by the Controller, the Processor shall correct, rectify or block the Personal Data. Any request from a Data Subject directly to the Processor, shall be promptly directed to the Controller.

5.4. Notification of regulatory activities: notify the Controller immediately of any monitoring activities and measures undertaken by a Supervisory Authority.

6 Sub-processing

6.1. Engagement of sub-processors

The Controller acknowledges and agrees that the Processor may engage sub-processors to support it in carrying out the processing of Personal Data after having obtained prior authorization from the Controller. As a further condition for permitting a sub-processor to process Personal Data, the Processor shall ensure that each sub-processor that it engages under this DPA undertakes or has already undertaken the same obligations as imposed on the Processor under this DPA and the Agreement by way of written agreement. This includes, without limitation, executing the applicable module(s) of the Standard Contractual Clauses. The Controller shall be entitled on obtain information from the Processor or sub-processor, upon written request, on the substance of such written agreements and its implementation by the sub-processor.

6.2. Current sub-processors and new engagements

The Processor and Controller have agreed that at the Effective Date the sub-processors listed by name and location in the DPS are explicitly authorized. The Processor shall inform the Controller of its intention to remove an existing sub-processor or engage a new sub-processor at least sixty (60) business days prior to the start of the change, by sending written notice to privacy@tomtom.com and the engagement can be effectuated only with the prior authorization of the Controller.

6.3. Liability

Where a sub-processor fails to fulfil its data protection obligations under any written agreement, the Processor shall remain fully responsible and liable to the Controller for the performance of the sub-processor's obligations under such agreement.

7 International data transfers

7.1. Data residency

All Processing of the Personal Data, including storage, shall take place in a member state of the EU, unless explicitly authorized otherwise in writing by the Controller prior to such processing.

7.2. Standard Contractual Clauses

to the extent that any data transfer to a third country has been authorized by the Controller in line with clause 7.1. and is essential to enable the Processor to provide the services under the Agreement, such data transfer shall be governed by the applicable module(s) of the Standard Contractual Clauses.

7.3. Onward transfer

To the extent clause 7.2 applies, Personal Data may only be disclosed to a sub-processor located or otherwise processing the Personal Data outside the EU (hereinafter “onward transfer”) if the sub-processor is or agrees to be bound by the applicable module(s) of the Standard Contractual Clauses or, alternatively, only if: (i) the sub-processor otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 GDPR with respect to the processing in question; or (ii) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 GDPR that covers the onward transfer. Any disclosure may only take place subject to compliance by the Processor with all the other safeguards under the Standard Contractual Clauses.

7.4. Immediate termination

The Controller shall be entitled to immediately terminate the DPA without any liability in the event that a data transfer or the supplementary measures implemented to manage the risk thereof under this DPA are considered to be inadequate by the Controller in its reasonable assessment. For the avoidance of doubt, the Processor shall immediately terminate the data transfer in that case.

8 Information obligations

9 Consequences of Termination

The Parties agree that on the termination of the provision of the services under the Agreement, the Processor and its sub-processor(s), at the choice of the Controller, to be communicated within ninety (90) days of the date of the termination, shall either:

1. return all copies and storage media containing Personal Data to the Controller; or
2. destroy all copies and storage media containing Personal Data and certify to the Controller that it has done so in writing within thirty (30) days of the original request of the Controller.

Where applicable law prevents the Processor from returning or destroying all or part of the Personal Data, the Processor warrants that it shall guarantee the confidentiality and security of the retained Personal Data, retain it only as long as necessary by law and not actively process it anymore.

10 Assignment

The Processor shall not assign its obligations under this DPA without the prior written consent of the Controller. Where the Processor assigns this DPA, with the consent of the Controller, it shall do so only by way of a written agreement with the assignee which imposes the same obligations on the assignee as are imposed on the Processor under this DPA.

11 Liability

Notwithstanding anything to the contrary in the Agreement, the Processor shall indemnify Controller for claims of any third party that arise as a result of Processor’s non-compliance with its obligations under this DPA and the applicable local laws and legislation of the countries where the Personal Data is processed and regulations regarding data protection and privacy.

12 Other

The choice of law and jurisdiction clauses of the Agreement shall apply to this DPA. In case of any conflict between the provisions of this DPA and the provisions of the Agreement, in relation to the rights and obligations applicable between the Controller and Processor regarding the Processing of Personal Data, the provisions of this DPA shall prevail.

Downloads
Information Security Annex
PDF - 256kb
Standard Contractual Clauses Controller to Processor Module 2
PDF - 401kb
Standard Contractual Clauses Processor to Processor Module 3
PDF - 408kb