Worldwide: Updating Your Vendor Agreements To Comply With GDPR

Last Updated: April 28 2017
Article by Lei Shen and Rebecca Eisner

If you have been keeping up with the upcoming EU General Data Protection Regulation, you are likely already aware of the myriad steps that you must complete within your organization before May 2018 in order to comply. For example, you may need to appoint a data protection officer, depending on the types of processing your company conducts. But another important and potentially time-consuming step that you need to complete is the review of your agreements with third-party vendors that will have access to your EU personal data to ensure those agreements comply with the GDPR. Even if your agreements already comply with the EU Data Protection Directive, you may still need to update those agreements to meet the new requirements of the GDPR. This article discusses some of the issues to consider as you review your vendor agreements for GDPR compliance. Editor's note: Alexandra Ross recently wrote on a similar topic in the March edition of The Privacy Advisor.

Article 28

Article 28 of the GDPR includes a list of items that a controller must include in its contracts with its processors that will have access to EU personal data. Some of these requirements are already requirements under the Directive (e.g., the requirement that the processor only process personal data on documented instructions from the controller, and the requirement to have appropriate security measures in place), so your contracts should already cover them if you are already complying with the Directive.

However, Article 28 also adds new requirements that you will need to include in your third-party vendor agreements. For example, you may need to add requirements for the vendor to assist you in complying with your various obligations in Articles 32 to 36 of the GDPR. These obligations include assisting you with notifying a supervisory authority or a data subject of a data breach and assisting you with carrying out a data protection impact assessment.

You should also make sure that your vendors are required to either delete or return all the personal data to you, at your option, after the end of the services relating to such processing, and delete any existing copies of the personal data unless otherwise required by EU law. In addition, your vendor must also make available to you all information necessary to demonstrate its compliance with its obligations under Article 28 of the GDPR, and allow for and contribute to audits by you or another auditor mandated by you.


If the definitions in your current agreements were based on the Directive's definitions, you may need to update those definitions to reflect the revisions being implemented by the GDPR. For example, the GDPR revises the definition of "personal data" to include online identifiers and location data as well as a reference to genetic factors and updates the definition of "sensitive personal data" (or "special category personal data") to include genetic data, biometric data, and data concerning sexual orientation. The GDPR also changes or adds other definitions, including the definition of "consent" and the term "genetic data."

Data breach

The GDPR adds a data breach notification requirement, and if your agreements already comply with U.S. law, they likely already contain such a requirement. However, it's important to note that the scope of U.S. data breach notification laws and the GDPR are very different. In the U.S., generally only limited sensitive personal data, such as Social Security numbers, financial account numbers, and other information that may subject a user to identify theft, are covered by the state data breach notification laws. Under the GDPR, however, all personal data will be covered by the data breach notification requirement. This includes a breach of any business contact information that is subject to the GDPR. Therefore, you may need to expand the scope of your vendor's breach notification obligation.

In addition, several U.S. data breach notification laws define a security breach to include a risk of harm consideration. For example, Arizona's data breach notification law defines "security breach" to mean "an unauthorized acquisition of and access to unencrypted or unredacted computerized data that materially compromises the security or confidentiality of personal information ... that causes or is reasonably likely to cause substantial economic loss to an individual." While the GDPR has a risk-of-harm consideration with respect to the controller's obligation to notify the supervisory authority and individuals, it does not have this risk-of-harm consideration for processors. Rather, a processor must notify the controller without undue delay after becoming aware of any personal data breach.

Liability and risk coverage

Given that the GDPR significantly increases the possible fines to the greater of €20 million or 4 percent of a company's annual worldwide turnover, vendors will likely push back on the current limits of liability, indemnities, and other similar clauses to address the new risks. It will be some time before we may determine a reasonable and market standard approach to the appropriate allocation of risk and financial responsibility for such fines as between customers and third-party processors. It will be necessary for data controllers and data processors to examine their insurance policies, coverages and exceptions to determine the extent to which liability and fines for data breaches and other GDPR obligations may be the subject of insurance coverage.

Privacy Shield

If you are receiving personal data from the EU as a Privacy Shield-certified entity, you will need to evaluate your agreements to ensure they comply with the Privacy Shield's onward-transfer requirements. For example, the Privacy Shield requires that third-party agents that will be receiving EU personal data from you provide the same level of privacy protection as is required by the Privacy Shield principles, among other requirements. If you did not certify to the Privacy Shield before Sept. 30, 2016, then you will need to ensure that your vendor agreements comply with these onward transfer requirements before you may certify.


The changes above assume that your contracts are already compliant with the requirements under the current Directive. If you are currently not subject to the Directive but will become subject to the GDPR due to the change in territorial scope (e.g., you are established outside of the EU and have no operations in the EU, but will be offering goods or services in the EU or monitoring the behavior of data subjects in the EU), you will need to make additional changes to your vendor agreements to ensure they comply with the GDPR. For example, you may need to add security requirements, subcontracting restrictions, and other similar requirements that are already covered by the current Directive.

Originally published in The Privacy Advisor, March 2017.

Visit us at

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2017. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions