The Third Party Data Processing Agreement is essential when an organization (responsible party) engages another entity (operator) to process personal information on its behalf in South Africa. This agreement is required under the Protection of Personal Information Act (POPIA) to ensure lawful processing of personal information and to establish clear accountability and security measures. It addresses key aspects such as processing limitations, purpose specification, security safeguards, and data subject participation. The agreement becomes particularly crucial in the context of outsourcing, cloud services, or any scenario where personal information is handled by external service providers. It must comply with South African data protection laws while providing practical frameworks for data handling, breach notification, and audit procedures.
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1. Parties: Identification of the data controller (responsible party) and data processor (operator) with their full legal details
2. Background: Context of the agreement and the processing relationship between the parties
3. Definitions: Definitions of key terms, incorporating POPIA terminology and agreement-specific terms
4. Scope and Purpose of Processing: Detailed description of the processing activities, purposes, and types of personal information involved
5. Obligations of the Processor: Core responsibilities of the processor including security measures, confidentiality, and compliance with POPIA
6. Instructions and Authority: Requirements for the processor to act only on documented instructions from the controller
7. Security Measures: Technical and organizational security measures required to protect personal information
8. Sub-processing: Conditions and requirements for engaging sub-processors
9. Data Subject Rights: Procedures for handling data subject requests and assisting the controller
10. Data Breaches: Notification requirements and procedures for handling data breaches
11. Audit Rights: Controller's rights to audit the processor's compliance
12. Term and Termination: Duration of the agreement and termination provisions
13. Return or Deletion of Data: Obligations regarding personal information upon termination
14. Liability and Indemnities: Allocation of liability and indemnification provisions
15. General Provisions: Standard contractual provisions including governing law, jurisdiction, and notice requirements
1. Cross-border Data Transfers: Required when personal information will be transferred outside South Africa
2. Special Personal Information: Required when processing special categories of personal information as defined in POPIA
3. Direct Marketing: Required when the processing activities involve direct marketing purposes
4. Automated Decision Making: Required when processing involves automated decision-making or profiling
5. Children's Data: Required when processing personal information of children
6. Insurance Requirements: Required when specific insurance coverage is needed for the processing activities
7. Business Continuity: Required for critical processing activities requiring business continuity guarantees
1. Schedule 1 - Processing Activities: Detailed description of processing activities, including categories of data subjects, types of personal information, and processing purposes
2. Schedule 2 - Technical and Organizational Security Measures: Detailed specifications of required security measures and controls
3. Schedule 3 - Approved Sub-processors: List of approved sub-processors and their processing activities
4. Schedule 4 - Transfer Mechanisms: Details of mechanisms for lawful cross-border transfers if applicable
5. Schedule 5 - Service Levels: Service level agreements specific to data processing activities
6. Appendix A - Data Breach Response Plan: Detailed procedures for handling and reporting data breaches
7. Appendix B - Audit Procedures: Detailed procedures for conducting compliance audits
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