Data Protection Agreement
This Agreement sets out the additional terms, requirements and conditions on which the Supplier will process Personal Data when providing services under the Master Services Agreement. This Agreement contains the mandatory clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors and the General Data Protection Regulation ((EU) 2016/679).
1. Definitions and Interpretation
The following definitions and rules of interpretation apply in this Agreement.
Authorised Persons: the persons or categories of persons that the Customer authorises to give the Supplier written personal data processing instructions as identified in the Order Form and from whom the Supplier agrees solely to accept such instructions.
Business Purposes: the services to be provided by the Supplier to the Customer as described in the Master Agreement and any other purpose specifically identified in the Order Form.
Commissioner: the Information Commissioner (see Article 4(A3), UK GDPR and section 114, DPA 2018).
Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given to them in the Data Protection Legislation.
Data Protection Legislation:
To include all applicable data protection and privacy legislation in force from time to time in the jurisdiction applicable to the processing of personal data:
(a) To the extent the UK GDPR applies, the protection and processing of personal data shall be done so in accordance with the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(b) To the extent the EU GDPR applies, or any non EU member state, the data protection legislation applicable to the jurisdiction shall be applicable to the protection and processing of personal data.
shall include all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Commissioner or other relevant regulatory authority and which are applicable to a party.
Data Subject: the identified or identifiable living individual to whom the Personal Data relates.
EEA: the European Economic Area.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Other Jurisdictional Law: other national data protection legislation relevant to Customer jurisdiction.
Personal Data: means any information relating to an identified or identifiable living individual that is processed by the Supplier on behalf of the Customer as a result of, or in connection with, the provision of the services under the Master Agreement; an identifiable living individual 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 the individual.
Personal Data Breach: a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to, the Personal Data.
Processing, processes, processed, process: any activity that involves the use of the Personal Data. It includes, but is not limited to, any operation or set of operations which is performed on the Personal Data or on sets of the Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring the Personal Data to third-parties.
Processor: a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
Records: has the meaning given to it in Clause 12.
Standard Contractual Clauses (SCC): the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which can be found at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj or such alternative clauses as may be approved by the European Commission from time to time.
Term: this Agreement’s term as defined in Clause 10.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
1.2 This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this Agreement.
1.3 The Annexes 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 Annexes.
1.4 A reference to writing or written includes email.
1.5 In the case of conflict or ambiguity between:
(a) any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
(b) the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail; and
(c) any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail.
2. Personal data types and processing purposes
2.1 The Customer and the Supplier agree and acknowledge that for the purpose of the Data Protection Legislation:
(a) the Customer is the Controller and the Supplier is the Processor.
(b) the Customer retains control of the Personal Data and remains responsible for its compliance obligations under the Data Protection Legislation, including but not limited to, providing any required notices and obtaining any required consents, and for the written processing instructions it gives to the Supplier.
(c) the Customer shall notify the Supplier in writing where they consider it appropriate to describe the subject matter, duration, nature and purpose of the processing and the Personal Data categories and Data Subject types in respect of which the Supplier may process the Personal Data to fulfil the Business Purposes.
3. Supplier’s obligations
3.1 The Supplier 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 Supplier 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 Supplier must promptly notify the Customer if, in its opinion, the Customer’s instructions do not comply with the Data Protection Legislation.
3.2 The Supplier must comply promptly with any Customer written instructions requiring the Supplier to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3 The Supplier will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third-parties unless the Customer or this Agreement specifically authorises the disclosure, or as required by domestic, EU law or other applicable jurisdictional law, court or regulator (including the Commissioner). If a domestic or EU law, court or regulator (including the Commissioner) requires the Supplier to process or disclose the Personal Data to a third-party, the Supplier must first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the domestic, EU law or other applicable jurisdictional law prohibits the giving of such notice.
3.4 The Supplier will reasonably assist the Customer, at no additional cost to the Customer, with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of the Supplier’s processing and the information available to the Supplier, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Commissioner or other relevant regulator under the Data Protection Legislation.
3.5 The Supplier must notify the Customer promptly of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting the Supplier’s performance of the Master Agreement or this Agreement.
3.6 The Supplier will only collect Personal Data for the Customer using a notice or method that the Customer specifically pre-approves in writing, which contains an approved data privacy notice informing the Data Subject of the Customer’s identity, the purpose or purposes for which their Personal Data will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing. The Supplier will not modify or alter the notice in any way without the Customer’s written consent.
4. Supplier’s employees
4.1 The Supplier will ensure that all of its employees:
(a) are informed of the confidential nature of the Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Personal Data;
(b) have undertaken training on the Data Protection Legislation and how it relates to their handling of the Personal Data and how it applies to their particular duties; and
(c) are aware both of the Supplier’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
4.2 The Supplier will take reasonable steps to ensure the reliability, integrity and trustworthiness of and conduct background checks consistent with applicable domestic law on all of the Supplier’s employees with access to the Personal Data.
5.1 The Supplier must at all times implement appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data including, but not limited to, the security measures set out in https://www.iamcloud.com/security.
5.2 The Supplier 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 the security measures.
6. Personal data breach
6.1 The Supplier will within 72 hours and in any event without undue delay notify the Customer in writing if it becomes aware of:
(a) the loss, unintended destruction or damage, corruption, or unusability of part or all of the Personal Data. The Supplier will restore such Personal Data at its own expense as soon as possible.
(b) any accidental, unauthorised or unlawful processing of the Personal Data; or
(c) any Personal Data Breach.
6.2 Where the Supplier becomes aware of (a), (b) and/or (c) above, it will, without undue delay, also provide the Customer with the following written information:
(a) description of the nature of (a), (b) and/or (c), including the categories of in-scope Personal Data and approximate number of both Data Subjects and the Personal Data records concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.
6.3 Immediately following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, the Supplier will reasonably co-operate with the Customer at no additional cost to the Customer, in the Customer’s handling of the matter, including but not limited to:
(a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected;
(c) facilitating interviews with the Supplier’s employees, former employees and others involved in the matter including, but not limited to, its officers and directors;
(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 accidental, unauthorised or unlawful Personal Data processing.
6.4 The Supplier will not inform any third-party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Customer’s written consent, except when required to do so by domestic, EU law or other applicable jurisdictional law.
6.5 The Supplier agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope 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.
6.6 The Supplier will cover all reasonable expenses associated with the performance of the obligations under clause 1 to clause 6.3 unless the matter arose from the Customer’s specific written instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will cover all reasonable expenses.
6.7 The Supplier will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to an incident of accidental, unauthorised or unlawful processing and/or a Personal Data Breach to the extent that the Supplier caused such, including all costs of notice and any remedy as set out in Clause 5.
7. Cross-border transfers of personal data
7.1 The Supplier (and any subcontractor) may transfer or otherwise process the Personal Data outside the UK or, the EEA and where applicable the Customer shall be notified.
7.2 Where such transfer or process outside the UK or EEA is necessary, the Supplier may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:
7.2.1 the Supplier is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Supplier must disclosure to the Customer the territory that is subject to such adequacy regulations; or
7.2.2 the Supplier participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Supplier (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the UK GDPR. The Supplier must notify the Customer of the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Supplier must immediately inform the Customer of any change to that status; or
7.2.3 the transfer otherwise complies with the Data Protection Legislation.
7.3 If any Personal Data transfer between the Customer and the Supplier requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting Personal Data to the Provider outside the EEA), the parties will complete all relevant details in, and execute, the SCC found at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj and take all other actions required to legitimise the transfer.
8.1 The Supplier may not authorise any third party or subcontractor to process the Personal Data.
8.2 Other than those subcontractors notified to the Customer, the Supplier may not authorise any other third-party or subcontractor to process the Personal Data.
8.3Where the subcontractor fails to fulfil its obligations under the written agreement with the Supplier which contains terms substantially the same as those set out in this Agreement, the Supplier remains fully liable to the Customer for the subcontractor’s performance of its agreement obligations.
8.4 The Parties agree that the Supplier will be deemed by them to control legally any Personal Data controlled practically by or in the possession of its subcontractors.
9. Complaints, data subject requests and third-party rights
9.1 The Supplier must, at no additional cost to the Customer, 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, but not limited to, subject access rights, the rights to rectify, port 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 the Commissioner or other relevant regulator under the Data Protection Legislation.
9.2 The Supplier must notify the Customer immediately in writing 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.
9.3 The Supplier must notify the Customer within 5 days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Legislation.
9.4 The Supplier will give the Customer, at no additional cost to the Customer, its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5 The Supplier must not disclose the Personal Data to any Data Subject or to a third-party other than in accordance with the Customer’s written instructions, or as required by domestic, EU law or other applicable jurisdictional law.
10. Term and termination
10.1 This Agreement will remain in full force and effect so long as:
(a) the Master Agreement remains in effect; or
(b) the Supplier retains any of the Personal Data related to the Master Agreement in its possession or control (Term).
10.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Master Agreement in order to protect the Personal Data will remain in full force and effect.
10.3 The Supplier’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 involving the processing of the Personal Data effective immediately on written notice to the Supplier without further liability or obligation of the Customer.
10.4 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Master Agreement obligations, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within 30 days, either party may terminate the Master Agreement with immediate effect on written notice to the other party.
11. Data return and destruction
11.1 At the Customer’s request, the Supplier will give the Customer, or a third-party nominated in writing by the Customer, a copy of or access to all or part of the Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.
11.2 On termination of the Master Agreement for any reason or expiry of its term, the Supplier will securely delete or destroy within 12 weeks of termination, if directed in writing by the Customer, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control.
11.3 If any law, regulation, or government or regulatory body requires the Supplier to retain any documents, materials or Personal Data that the Supplier would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for such retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.
12.1 The Supplier will keep detailed, accurate and up-to-date written records regarding any processing of the Personal Data, including but not limited to, the access, control and security of the Personal Data, subcontractors, the processing purposes, categories of processing, and a general description of the technical and organisational security measures referred to in Clause 5.1 (Records).
12.2 The Supplier will ensure that the Records are sufficient to enable the Customer to verify the Supplier’s compliance with its obligations under this Agreement and the Data Protection Legislation and the Supplier will provide the Customer with copies of the Records upon request.
12.3 The Customer and the Supplier must review the information listed in the Annexes to this Agreement frequently to confirm its current accuracy and update it when required to reflect current practices.
13.1 Should the ICO notify the Supplier that an audit of the Supplier’s compliance with its Agreement obligations are required the Supplier agrees to comply with such request.
14.1 The Supplier warrants and represents that:
(a) its employees, subcontractors, agents and any other person or persons accessing the Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation;
(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) it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Master Agreement’s contracted services; and
(d) considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the accidental, unauthorised or unlawful processing of Personal Data and the loss or damage to, the Personal Data, and ensure a level of security appropriate to:
(i) the harm that might result from such accidental, unauthorised or unlawful processing and loss 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.
14.2 The Customer warrants and represents that the Supplier’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.
15.1 The Supplier agrees to indemnify, keep indemnified and defend at its own expense the Customer against all costs, claims, damages or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Supplier or its employees, subcontractors or agents to comply with any of its obligations under this Agreement and/or the Data Protection Legislation.
15.2 Any limitation of liability set forth in the Master Agreement will not apply to this Agreement’s indemnity or reimbursement obligations.
16.1 Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to:
For the Supplier: in the case of those to the Customer, to any email or physical address or contact details notified on the Order Form (as updated from time to time pursuant to clause 26.4 of the Master Service Agreement).
16.2 Clause 16.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This Agreement has been entered into on the date the Order Form is executed by both parties.