Data Processing Clauses

DPA Standard Contractual Clauses for EU Clients

This Data Processing Clauses, including its Annexes, (“DPC”) forms part of the Terms of Service or other written or electronic agreement between Servercore (Servercore Africa Ltd, P.O BOX 100778, JAMIA, servercore.com) and Client for the use of the online service Servercore (servercore.com). Client enters into this DPC on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates.

Section I

1. Purpose and scope

(a) The purpose of this Data Processing Clauses (the Clauses) is to ensure compliance with Kenya’s Data Protection Act / 2019 No. 24 of 2019 and Data Protection (General) Regulations /2021E No. 263.

(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021.

(d) Annexes I to IV are an integral part of the Clauses.

(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021.

(f) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter VI/VII of Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021.

2. Invariability of the Clauses

The parties may incorporate the data processing clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

3. Interpretation

(a) Where these Clauses use the terms defined in Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021 respectively, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021.

(c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

4. Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

5. Docking clause

(a) Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.

(b) Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.

(c) The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

Section II Obligations of the Parties

6. Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

7. Obligations of the Parties

7.1. Instructions

(a) The processor shall process personal data only on documented instructions from the controller, unless required to do so by Kenya law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.

(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021 or the applicable Kenya data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II.

7.4. Security of processing

(a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

(b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6. Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.

(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.

(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

(a) GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 10 (ten) days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.

(b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021.

(c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.

(d) The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.

(e) The processor shall agree a third party beneficiary clause with the sub-processor whereby – in the event the processor has factually disappeared, ceased to exist in law or has become insolvent – the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

(a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Kenya law to which the processor is subject and shall take place in compliance with Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations / 2021.

(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021, the processor and the sub-processor can ensure compliance with Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021 by using data processing clauses.

8. Assistance to the controller

(a) The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

(b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions.

(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:

(i) the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;

(ii) the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;

(iii) the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated.

(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

9. Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations, taking into account the nature of processing and the information available to the processor.

9.1. Data breach concerning data processed by the controller

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

(a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

(b) in obtaining the following information which must at least include:

(1) the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

(2) the likely consequences of the personal data breach;

(3) the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(c) in complying with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

9.2. Data breach concerning data processed by the processor

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the personal data breach can be obtained;

(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

Section III Final provisions

10. Non-compliance with the Clauses and termination

(a) Without prejudice to any provisions of Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

(1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;

(2) the processor is in substantial or persistent breach of these Clauses or its obligations under Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021;

(3) the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or Kenya’s Data Protection Act / 2019 or Data Protection (General) Regulations /2021.

(с) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.

(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Kenya law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

Annex I

Description of the processing

Categories of data subjects whose personal data is processed
Categories of data subjects are defined by the controller, which is the client of Servercore.

Categories of personal data processed
Categories of personal data are defined by the controller.

Sensitive data processed (if applicable)
Sensitive data is not processed

Nature of the processing
On the client’s request, processor stores data on its servers. The nature of the processing may vary depending on the type of service

Purpose(s) for which the personal data is processed on behalf of the controller
The purpose of the processing is to provide data controller with the service:

Dedicated servers (fixed configurations)
Cloud platform
Cloud storage
Cloud powered by VMware
MSSP, managed-services (Security Management as Service)
Selling Information Security Products
CDN and Connectivity Services (Direct Connect, Anti-DDoS)
PaaS services (DBaaS, Kubernetes, Serverless Functions)
File storage
Load balancer
Backup as a service

Duration of the processing
Duration of the processing is defined by the main agreement between data controller and processor.

Annex II

Technical and organisational measures including technical and organisational measures to ensure the security of the data

Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

Each Staff member signs a contract, non-disclosure agreement, privacy obligation and list of familiarization with internal corporate confidentiality, information security, privacy policies.
Each Staff member passes an annual training on Informational Security and Privacy (through online training system) and completes the questionnaire as per internal policy requirements.
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Upon detection of any suspicious or non-standard event that could be a personal data breach or information security incident, the Staff is required by internal policy to report it in respective corporate ticket-system. The report is automatically assigned to an Incident Response Team (DPO, ISO, CTO, legal).
Further incident handling activities are carried out by the Incident Response Team, including communication, initial support, registration, recovery, and incident closure.
Implementation of log access management and data breach reporting processes to timely define, manage and report all personal data breaches in accordance with respective corporate policies.
Regular data backups in electronic form on a daily basis.
Storage of backups on an external secure server.
Protection of backed up data with the same security level as data stored on corporate servers by organising storage by contractually regulating an outsourced backup service.
Staff is instructed to store users’ data in corporate backed-up systems and storages.

Measures for user identification and authorisation

The is instructed not to store its access credentials (login/password) in an easily accessible form (unencrypted file, paper, sticker, etc.).
The requirements to complexity of passwords.
An automatic logout procedure of locking the workstations not-used for a given period of time.
An access control policy, which includes:
the procedures to be applied automatically upon arrival and departure or a change of role for an individual with access to personal data;
the planned consequences for individuals with legitimate access to data in the event of non-compliance with security measures;
the measures allowing to restrict and control the granting and use of access to processing.

Measures for the protection of data during transmission

Encryption of data before sending it on a physical medium (DVD, USB stick, portable hard drive) or to a third party.
External networks are used exclusively (VPN, dedicated line).
When sending data through network:
encryption of sensitive data before sending, if this transmission uses electronic messaging.
use of a protocol guaranteeing the confidentiality and authentication of the recipient server for file transfers, for example SFTP or HTTPS, by using the most recent version of protocols.
ensuring the confidentiality of secrets (encryption keys, passwords, etc.) by sending them via a separate channel (for example, sending an encrypted file by email and communicating the password by phone or SMS).

Measures for ensuring physical security of locations at which personal data are processed

All entrance doors to the physical perimeter are connected to the Access Control System (ACS). Unauthorized doors opening that are under control of the ACS is always registered.
The Staff is visually identified by badges. They use personal access cards to obtain access to work premises.
There is a mandatory registration of all visitors, with a record of the time and purpose of the visit, as well as information about the host person.
When exchanging information inside and outside the companies using any means of communication (email, messenger, internet, voice, media, etc.), the Staff follows the rules preventing unauthorized information distribution (e.g. prohibiting store confidential information outside of corporate infrastructure).
For sensitive information an additional security measures are applied like secure storage place, encrypted channels etc.
Information stored on USB/HDD/SSD and other read/write drives should be deleted by utilizing the wipe functions (through the file manager, system formatting utilities).
Paper documents are required to be destroyed through paper shredding machine.

Measures for ensuring events logging

Corporate system of logging (i.e. storing events in “log files”) and recording of users’ activities, abnormalities and events related to information security.
Procedures detailing the monitoring of processing use and periodically carrying out a review of the logged information to detect possible anomalies.
All anomalies and incidents to be investigated by information security team.

Measures for internal IT and IT security governance and management

It is prohibited by corporate policy to use illegal software, particularly: unlicensed software, hacked/pirated software, software unrelated to company business (for example, crypto miners), etc.
All workplaces (workstations, laptops, etc.) of the Staff are antivirus protected.
All valuable information assets are regularly backed up. Corporate network is protected with Firewall. Regular monitoring of network activities is established.
Vulnerability assessment and regular software updating for most critical infrastructure is established.
The security updates are carried out automatically and regularly.
The connection of mobile media (USB sticks, external hard drives, etc.) is limited to what is essential.

Measures for ensuring data minimisation

Internal Corporate privacy policy and Retention policy are specifying the requirements for data minimization.
Corporate systems and websites/Apps are structured to collect only minimum of necessary data.
Measures for ensuring system configuration, including default configuration
Implementation by default of standard settings, software and equipment for all corporate systems and of Staff Members’ devices, including antivirus software and vulnerability scanning and control.

Measures for ensuring limited data retention

Corporate Retention policy defines what data must be archived, how and where is it stored, how is descriptive data managed.
Implemented specific access methods to archived data, due to the fact that the use of an archive is made in a specific and exceptional manner.
With regard to the destruction of archives, there is a procedure guaranteeing that the archive has been destroyed in its entirety.