As far as I know, under English law at least, liability can be limited by contract for certain types of claims, so I think the clause in the contract would negate that paragraph of the GDPR.
Dan
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 21 January 2020 17:01
To: [log in to unmask]
Subject: [data-protection] Limitation of Processor Liability
A processor has inserted a clause in the processing agreement:
The Processor's liability to the Controller in respect of any and all causes of action arising out of or in connection with this Agreement (whether in contract, strict liability, tort (including negligence), misrepresentation or otherwise howsoever arising) shall not exceed 125% of the contract value …
We will probably accept any risk if Processor insists, to get the job done, as the real risk is miniscule in the particular case, but is that limitation even enforceable in the light of Art 82(5) ?
"Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage"
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