1. DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
Data Protection Legislation: all applicable data protection laws including GDPR and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
Data Subject: an individual who is the subject of Personal Data.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Personal Data: means any information relating to an identified or identifiable natural person that is processed by the Processor as a result of, or in connection with, the provision of the services under the Services Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Processing: means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.2 The Schedules form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.3 A reference to writing or written includes email.
2. PROCESSING PURPOSES
2.1 The Controller and the Processor acknowledge that the Controller is the controller and the Processor is the processor and that the Controller retains control of the Personal Data and remains responsible for its compliance obligations under Data Protection Legislation. It can be a case that the controller is also the processor.
2.2. Where the Processor appoints a subcontractor pursuant to clause 4 below, the Processor shall be a data controller in relation to such processing.
2.3 The Processor may process the Personal Data categories and Data Subject types set out in Schedule 1 of this Agreement.
3. PROCESSOR’S OBLIGATIONS
- The Processor shall:
- implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of Data Protection Legislation and ensure the protection of the rights of the Data Subject, as further set out below in this Agreement;
- only use subcontractors to help with the processing of Personal Data in the circumstances set out in clause 4 below;
- process the Personal Data only on documented instructions from the Controller, unless required to do so by Union or Member State law to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- ensure that persons authorised to process the personal data (such as its employees) have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- take the security measures set out in clause 5 below;
- taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights as set out in clause 6 below;
- assist the Controller in ensuring compliance with the obligations set out in clause 7 below (data breach) taking into account the nature of processing and the information available to the Processor;
- at the choice of the Controller, delete or return all the Personal Data to the Controller after the termination or expiry of the Services Agreement and delete existing copies (unless Union or Member State law requires storage of the Personal Data);
- make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of GDPR and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller;
- assist the Controller in ensuring compliance with the requirement to carry out Data Protection Impact Assessments as set out in Article 35 of GDPR, taking into account the nature of processing and the information available to the Processor;
- There is no requirement to appoint a Data Protection Officer .
- immediately inform the Controller, if in the opinion of the Processor, an instruction from the Controller infringes Data Protection Legislation.
- The Processor will promptly comply with any request by or instruction from the Controller to process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
- The Processor may only authorise a third party (“subcontractor”) to process the Personal Data if:
- the Processor has carried out appropriate due diligence on any subcontractor to ensure that the subcontractor can satisfy its contractual obligations; and
- the Processor and the subcontractor enter into a written contract containing terms the same as those set out in this Agreement, in particular, in relation to data security measures; and
- the Processor maintains control over all Personal Data it shares with the subcontractor; and
- the Processor ensures that the subcontractor does not process the Personal Data except on instructions from the Data Controller (unless required to do so by Union or Member State law); and
- The Processor shall be fully liable for the actions and inactions of the subcontractor and shall be responsible for the subcontractor’s performance of obligations.
5.1 The Processor shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including as appropriate:
- the pseudonymisation and encryption of Personal Data;
- the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
- the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
5.2 In assessing the appropriate level of security, the Processor shall take account in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
6. RESPONSES TO DATA SUBJECTS
6.1 The Processor will put in place such technical and organisational measures as may be appropriate to enable the Controller to comply with the rights of Data Subjects under Data Protection Legislation, including the right of access, the right to rectification, the right to erasure, the right to restriction of processing, the right to data portability, the right to object to processing and the right to object to automated individual decision making. The right to be forgotten is restricted if there is a requirement to hold the data legally – this can be viewed in our data retention policy.
6.2 If the Processor receives any complaint or other communication relating to the processing of the Personal Data or a Subject Access Request from a Data Subject, it must notify the Controller as soon as possible after it receives it and in any event within 3 working days and will provide the Controller with all reasonable assistance in helping the Controller to reply to such communications.
6.3 The Processor will provide to the Controller such information as the Controller may reasonably require in order for the Controller to comply with the rights of Data Subjects under Data Protection Legislation.
6.4 The Processor will provide all appropriate assistance to the Controller to enable it to comply with any information or assessment notices served on the Controller by any supervisory authority under the Data Protection Legislation.
6.5 The Processor shall not disclose Personal Data to any third party other than at the Controller’s written request or as set out in this agreement or as required by law.
7. PERSONAL DATA BREACH
If any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable (“Personal Data Loss”), the Processor will notify the Controller without undue delay
8. CROSS-BORDER TRANSFERS OF PERSONAL DATA
8.1 if the Processor appoints subcontractors that are based outside of the EEA, the Processor shall, prior to any Personal Data being transferred to such countries, ensure that such subcontractor is compliant to GDPR requirements or covered under the EU-US Privacy Shield. A list of systems used is in the System Data document.
9. TERM AND TERMINATION
9.1 This Agreement will continue for so long as the Processor processes any Personal Data related to the Services Agreement, and if required by legal reasons, held in accordance with the data retention policy.
10. DATA RETURN AND DESTRUCTION
Data retention is covered under a separate Data Retention Policy
10.1 The Processor will, on the request of the Controller, provide the Controller with a copy of or access to the Personal Data in its possession or control in the format and on the media reasonably specified by the Controller.
10.2 On termination or expiry of the Services Agreement, the Processor will at least 7 days prior to the date of expiry or termination ask the Controller whether the Controller wants the Personal Data to be deleted, destroyed, returned or retained and shall follow the Controller’s instructions accordingly.
10.3 If the Processor is required by any law, regulation, or government or regulatory body to retain any documents or materials, the Processor will inform the Controller in writing of such requirement, providing details of the legal basis for retention and setting out the timings for deletion when such retention period ends.
10.4 If the Controller requires the Processor to delete or destroy certain documents or materials or anything else containing Personal Data, the Processor shall certify in writing that it has so deleted or destroyed the Personal Data within 3 days of doing so.
The Processor will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Controller, using the schedule set out in schedule 3 or in such form as the Controller may require from time to time (Records) and shall send the Records to the Controller on a monthly basis (or such other period as required by the Controller).
12. GOVERNING LAW
This agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.