What is Data Processing Agreement Negotiation?
A data processing agreement is a legal contract that explains how data can be accessed between a data controller (a company collecting data) and a data processor (the service provider who processes it).
Since it deals with important provisions, you want to carefully review the agreement and potentially negotiate any terms you want to change.
Read the rest of this article to explore how to approach the negotiation process and how a qualified lawyer can help you to increase your chances of achieving best results.
What Key Terms are Usually Negotiated in a Data Processing Agreement?
There are various terms that can be negotiated in a data processing agreement, with some of the most common including the following:
- Scope. This section of the agreement explains data that will be processed and for what purposes.
- Data types. Parties will want to properly define and discuss the data categories involved in the agreement.
- Processing instructions. Since the agreement explains what purposes are permitted and prohibited, parties might want to negotiate them so that they can fulfill their obligations without unnecessary restrictions.
- Sub-processor approval. If the processor is allowed to hire third parties to process data, parties will seek clarity on what approvals and notifications are required.
- Duration. The agreement must explain how long data can be stored and what happens to it after agreement termination.
What are Tips for Negotiating a Data Processing Agreement?
There are some important tips to consider when negotiating a data processing agreement.
Clarify Audit Rights
Both parties might seek more information about how inspections of the processor’s security measures will be conducted. They might negotiate aspects of the process, such as how much notice periods are required for the processor to receive.
Discuss Prohibited Uses
The agreement should explicitly state the data being used and why. Parties should, however, negotiate any prohibited uses if these seem too restrictive. The agreed-on prohibited uses must be clearly defined to avoid violations and disputes in future.
Get Clarity about Sub-processors
If sub-processors are going to be allowed under the agreement, you might want to negotiate for prior approval rights or notification requirements when sub-processors are brought into the contract.
Establish Breach Notification Deadlines
Although some agreements might state that notifications for security breaches must occur promptly, short deadlines can sometimes be impractical. State why you would want a longer timeline, such as that you would want sufficient time to gather important information about the breach.
Define Security Standards
If specific standards for security measures aren’t reasonable, you should negotiate them. Remember to safeguard enough time for testing and evaluations. Try to avoid unrealistic requirements that are too expensive or provide challenges for implementing them.
Talk about Termination
Don’t neglect termination questions you might have as these shouldn’t be left for informal follow-ups that can result in misunderstandings. If the agreement’s termination obligations aren’t clear and specific, ask about data return or deletion requirements and how data backups will be handled.
Outline Performance Standards
You and the other party should clarify the minimum service-level requirements that are required and what failure remedies will apply. If there is repeated failure, you should consider including a termination-for-clause provision to protect your interests.
Get a Legal Review
It’s useful to get your data processing agreement legally reviewed by a professional lawyer before negotiating its terms. This will help you identify red flags that should be removed to better protect both parties’ interests. It can also save you time as the lawyer will clarify anything unclear in the document.
To request a legal review of your data processing agreement, consult a lawyer on an online legal platform like ContractsCounsel, one of the largest online legal marketplaces where you can access a curated network of lawyers.
When asking a lawyer on the platform to review your document, the process is easy.
- Go to the ContractsCounsel marketplace, where you can post your project for free. Include a few details to match with the best lawyers.
- Receive lawyer bids. You’ll receive multiple bids from lawyers directly on the platform who can assist you with a review.
- Once you receive the lawyer bids, you should review the lawyers' profiles. There’s lots of info on the platform to help you choose the best lawyer, such as their location, client ratings, years of experience, and field of expertise.
- Connect with a lawyer you think is best suited to your requirements and hire them to review your data processing agreement for a flat fee.
How Does a Lawyer Help You with Data Processing Agreement Negotiation?
A lawyer is beneficial to hire if you need to negotiate parts of your data processing agreement. They’ll conduct various tasks to assist you during the negotiation process, such as:
- Identifying legal risks you might miss. A lawyer will review the data processing agreement closely to spot any security, liability, or other risks prior to signing the agreement.
- Negotiating strong data protection. They’ll discuss clear obligations surrounding data handling and other processes.
- Clarifying roles and duties. A lawyer will make sure you clearly define all parties’ duties so that there’s no confusion.
- Revising or adding agreement terms. This ensures that the contract is clear and avoids any one-sided or vague language.
- Maintaining compliance. A lawyer has in-depth legal knowledge to confirm that the data processing agreement is aligned with all privacy laws and industry requirements.
- Reviewing international data concerns. If your agreement involves cross-border data transfers, you might want to negotiate its terms. A lawyer is skilled at doing this properly, with an eye for legal implications.
- Updating the agreement. A lawyer can structure your data processing agreement so that it continues to accommodate your business as it grows or data protection obligations change.
Where to Find a Lawyer for Data Processing Agreement Negotiation
If you need to hire a lawyer to negotiate a data processing agreement, you don’t have to worry about where or how to find a reputable one. Online legal platforms such as ContractsCounsel make the process of hiring a lawyer easy.
All lawyers on the platform have the experience and skill to negotiate key terms in your data processing agreement so that you can finalize a favorable contract.
You can select the most appropriate lawyer for your requirements by reviewing lawyer information on the platform, such as their location, credentials, years of experience, and other criteria. Everything you need to know about the lawyers is provided to create a stress-free process.
