Data Processing Agreement

1.         Definitions and interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1       Definitions:

        Business Purposes: the services agreed to be provided by the Provider to the Customer from time to time.

      Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including 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.

               Personal Data: means any information relating to an identified or identifiable natural person that is processed by the Provider as a result of, or in connection with, the provision of the services under the Master 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.

             Processing, processes and process: either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes 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. Processing also includes transferring Personal Data to third parties.

             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.

2.         Personal data types and processing purposes

2.1       The Customer and the Provider acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and the Provider is the processor.

2.2       The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Provider.

3.         Provider’s obligations

3.1       The Provider will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s written instructions. The Provider will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Provider must promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Data Protection Legislation.

3.2       The Provider must promptly comply with any Customer request or instruction requiring the Provider to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3       The Provider will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Customer or this Agreement specifically authorises the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires the Provider to process or disclose Personal Data, the Provider must first inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.4       The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of the Provider’s processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

4.         Provider’s employees

4.1       The Provider will ensure that all employees:

(a)    are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data;

(b)    have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and

(c)     are aware both of the Provider’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.

5.         Security

5.1       The Provider must at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.

5.2       The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

(a)    the pseudonymisation and encryption of personal data;

(b)    the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c)     the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and

(d)    a process for regularly testing, assessing and evaluating the effectiveness of security measures.

6.         Personal Data Breach

6.1       The Provider will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will restore such Personal Data at its own expense.

6.2       The Provider will promptly and without undue delay notify the Customer if it becomes aware of:

(a)    any accidental, unauthorised or unlawful processing of the Personal Data; or

(b)    any Personal Data Breach.

6.3       Where the Provider becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Customer with the following information:

(a)    description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;

(b)    the likely consequences; and

(c)     description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.

6.4       Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. The Provider will reasonably cooperate with the Customer in the Customer’s handling of the matter, including:

(a)    assisting with any investigation;

(b)    providing the Customer with physical access to any facilities and operations affected;

(c)     facilitating interviews with the Provider’s employees, former employees and others involved in the matter;

(d)    making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and

(e)    taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.

6.5       The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer’s prior written consent, except when required to do so by law.

6.6       The Provider agrees that the Customer has the sole right to determine:

(a)    whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and

(b)    whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

6.7       The Provider will cover all reasonable expenses associated with the performance of the obligations under clause 6.2 and clause 6.4 unless the matter arose from the Customer’s specific instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will cover all reasonable expenses.

6.8       The Provider will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to a Personal Data Breach to the extent that the Provider caused such a Personal Data Breach, including all costs of notice and any remedy as set out in clause 6.6.

7.         Subcontractors

7.1       The Provider may only authorise a third party (subcontractor) to process the Personal Data if:

(a)    the Customer is provided with an opportunity to object to the appointment of each subcontractor within 5 working days after the Provider supplies the Customer with full details regarding such subcontractor;

(b)    the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Customer’s written request, provides the Customer with copies of such contracts;

(c)     the Provider maintains control over all Personal Data it entrusts to the subcontractor; and

(d)    the subcontractor’s contract terminates automatically on termination of this Agreement for any reason.

7.2       Those subcontractors approved as at the commencement of this Agreement are as set out in Error! Reference source not found.. The Provider must list all approved subcontractors in Annex A and include any subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance.

7.3       Where the subcontractor fails to fulfil its obligations under such written agreement, the Provider remains fully liable to the Customer for the subcontractor’s performance of its agreement obligations.

7.4       The Parties consider the Provider to control any Personal Data controlled by or in the possession of its subcontractors.

7.5       On the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Data and provide the Customer with the audit results.

8.         Complaints, data subject requests and third party rights

8.1       The Provider must, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:

(a)    the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and

(b)    information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.

8.2       The Provider must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Legislation.

8.3       The Provider must notify the Customer within 5 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.

8.4       The Provider will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

8.5       The Provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer’s request or instruction, as provided for in this Agreement or as required by law.

9.         Term and termination

9.1       This Agreement will remain in full force and effect so long as the Provider retains any Personal Data related to the Master Agreement in its possession or control (Term).

9.2       Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of it order to protect Personal Data will remain in full force and effect.

9.3       The Provider’s failure to comply with the terms of this Agreement is a material breach of the Master Agreement. In such event, the Customer may terminate [the Master Agreement OR any part of the Master Agreement authorising the processing of Personal Data] effective immediately on written notice to the Provider without further liability or obligation.

10.       Data return and destruction

10.1     At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.

10.2     If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

10.3     The Provider will certify in writing that it has destroyed the Personal Data within 5 working days after it completes the destruction.

11.       Records

11.1     The Provider will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Customer, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 5.1 (Records).

11.2     The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this Agreement and the Provider will provide the Customer with copies of the Records upon request.

12.       Audit

12.1     The Provider will permit the Customer and its third-party representatives to audit the Provider’s compliance with its Agreement obligations, on at least 10 working days’ notice, during the Term. The Provider will give the Customer and its third-party representatives all necessary assistance to conduct such audits. The assistance may include, but is not limited to:

(a)    physical access to, remote electronic access to, and copies of the Records and any other information held at the Provider’s premises or on systems storing Personal Data;

(b)    access to and meetings with any of the Provider’s personnel reasonably necessary to provide all explanations and perform the audit effectively; and

(c)     inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to store, process or transport Personal Data.

12.2     The notice requirements in clause 12.1 will not apply if the Customer reasonably believes that a Personal Data Breach occurred or is occurring, or the Provider is in breach of any of its obligations under this Agreement or any Data Protection Legislation.

12.3     If a Personal Data Breach occurs or is occurring, or the Provider becomes aware of a breach of any of its obligations under this Agreement or any Data Protection Legislation, the Provider will:

(a)    promptly conduct its own audit to determine the cause;

(b)    produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;

(c)     provide the Customer with a copy of the written audit report; and

(d)    remedy any deficiencies identified by the audit within 5 working days.

12.4     At least once a year, the Provider will conduct site audits of its Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this Agreement, including, but not limited to, obtaining a network-level vulnerability assessment performed by a recognised third-party audit firm based on recognised industry best practices.

12.5     The Provider will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.

13.       Warranties

13.1     The Provider warrants and represents that:

(a)    its employees, subcontractors, agents and any other person or persons accessing Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation relating to the Personal Data;

(b)    it and anyone operating on its behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;

(c)     considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:

(i)      the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage;

(ii)     the nature of the Personal Data protected; and

(iii)    comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in clause 5.1.

13.2     The Customer warrants and represents that the Provider’s expected use of the Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation.

This agreement has been entered into on the date stated at the beginning of it.

This agreement was updated February 2023