DATA PROCESSING AGREEMENT
This Data Processing Agreement forms part of the master agreement between Shadowfax Technology Limited (“Shadowfax”) and the Customer (“Customer”), or if there is no master agreement in place then as part of the standard terms and conditions for the purchase of Shadowfax products and services.
(1)Shadowfax (Data Processor) supplies managed IT Services to the Customer (Data Controller).
(2)The provision of the Services by the Data Processor involves it in processing Personal Data on behalf of the Data Controller.
(3)Under EU Regulation 2016/679 General Data Protection Regulation (“the GDPR”) (Article 28, paragraph 3), the Data Controller is required to put in place an agreement in writing between the Data Controller and any organisation which processes personal data on its behalf governing the processing of that data.
(4)The Parties have agreed to enter into this Agreement to ensure compliance with the said provisions of the GDPR in relation to all processing of the Personal Data by the Data Processor for the Data Controller.
(5)The terms of this Agreement are to apply to all processing of Personal Data carried out for the Data Controller by the Data Processor and to all Personal Data held by the Data Processor in relation to all such processing.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Data Controller”, “Data Processor”, “processing”, and “data subject”
shall have the meanings given to the terms “controller”, “processor”, “processing”, and “data subject” respectively in Article 4 of the GDPR;
means the UK’s supervisory authority, the Information Commissioner’s Office;
means all such “personal data”, as defined in Article 4 of the GDPR, as is, or is to be, processed by the Data Processor or its sub-processor on behalf of the Data Controller;
means those services which are provided by the Data Processor to the Data Controller;
means a sub-processor appointed by the Data Processor to process the Personal Data; and
means an agreement between the Data Processor and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor, as described in Clause 10.
1.2Unless the context otherwise requires, each reference in this Agreement to:
1.2.1“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3“this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4a Schedule is a schedule to this Agreement; and
1.2.5a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2.6a "Party" or the "Parties" refer to the parties to this Agreement.
1.3The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4Words imparting the singular number shall include the plural and vice versa.
1.5References to any gender shall include all other genders.
1.6References to persons shall include corporations.
2. Scope and Application of this Agreement
2.1For the purposes of this agreement the parties agree that Shadowfax is the Processor of Personal Data.
2.2Customer may act as either a Controller or Processor, as applicable, of Personal Data. If the Customer is not the Controller of Personal Data, Customer represents and warrants to Shadowfax that the Customer has the right and authority to appoint Shadowfax as a Processor or sub-processor and provide instructions to Shadowfax, and such instructions have been authorized by the appropriate Controller of the Personal Data.
2.3The provisions of this Agreement shall apply to the processing of the Personal Data, carried out for the Data Controller by the Data Processor, and to all Personal Data held by the Data Processor in relation to all such processing whether such Personal Data is held at the date of this Agreement or received afterwards.
2.4The provisions of this Agreement supersede any other arrangement, understanding, or agreement made between the Parties at any time relating to the Personal Data.
2.5This Agreement shall continue in full force and effect for so long as the Data Processor is processing Personal Data on behalf of the Data Controller, and thereafter as provided in Clause 9.
3. Provision of the Services and Processing Personal Data
The Data Processor is only to carry out the Services, and only to process the Personal Data received from the Data Controller:
3.1for the purposes of those Services and not for any other purpose;
3.2to the extent and in such a manner as is necessary for those purposes; and
3.3strictly in accordance with the express written authorisation and instructions of the Data Controller (which may be specific instructions or instructions of a general nature or as otherwise notified by the Data Controller to the Data Processor).
4. Data Protection Compliance
4.1All instructions given by the Data Controller to the Data Processor shall be made in writing and shall at all times be in compliance with the GDPR and other applicable laws. The Data Processor shall act only on such written instructions from the Data Controller unless the Data Processor is required by law to do otherwise (as per Article 29 of the GDPR).
4.2The Data Processor shall promptly comply with any request from the Data Controller requiring the Data Processor to amend, transfer, delete, or otherwise dispose of the Personal Data.
4.3The Data Processor shall transfer all Personal Data to the Data Controller on the Data Controller’s request in the formats, at the times, and in compliance with the Data Controller’s written instructions.
4.4Both Parties shall comply at all times with the GDPR and other applicable laws and shall not perform their obligations under this Agreement or any other agreement or arrangement between themselves in such way as to cause either Party to breach any of its applicable obligations under the GDPR.
4.5The Data Controller hereby warrants, represents, and undertakes that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
4.6The Data Processor agrees to comply with any reasonable measures required by the Data Controller to ensure that its obligations under this Agreement are satisfactorily performed in accordance with any and all applicable legislation from time to time in force (including, but not limited to, the GDPR) and any best practice guidance issued by the ICO.
4.7The Data Processor shall provide all reasonable assistance (at the Data Controller’s cost) to the Data Controller in complying with its obligations under the GDPR with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.
4.8When processing the Personal Data on behalf of the Data Controller, the Data Processor shall:
4.8.1not process the Personal Data outside the European Economic Area (all EU member states, plus Iceland, Liechtenstein, and Norway) (“EEA”) without the prior written consent of the Data Controller and, where the Data Controller consents to such a transfer to a country that is outside of the EEA, to comply with the obligations of Data Processors under the provisions applicable to transfers of Personal Data to third countries set out in Chapter 5 of the GDPR by providing an adequate level of protection to any Personal Data that is transferred;
4.8.2process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Data Controller or as may be required by law (in which case, the Data Processor shall inform the Data Controller of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law);
4.8.3implement appropriate technical and organisational measures, as described in Schedule 1, and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure. The Data Processor shall inform the Data Controller in advance of any changes to such measures;
4.8.4if so requested by the Data Controller (and within the timescales required by the Data Controller) supply further details of the technical and organisational systems in place to safeguard the security of the Personal Data held and to prevent unauthorised access;
4.8.5make available to the Data Controller any and all such information as is reasonably required and necessary to demonstrate the Data Processor’s compliance with the GDPR;
4.8.6with reasonable prior notice, submit to audits and inspections and provide the Data Controller with any information reasonably required in order to assess and verify compliance with the provisions of this Agreement and both Parties’ compliance with the requirements of the GDPR. The requirement to give notice will not apply if the Data Controller believes that the Data Processor is in breach of any of its obligations under this Agreement or under the law; and
4.8.7inform the Data Controller immediately if it is asked to do anything that infringes the GDPR or any other applicable data protection legislation.
5. Data Subject Access, Complaints, and Breaches
5.1The Data Processor shall, at the Data Controller’s cost unless commercially reasonable, assist the Data Controller in complying with its obligations under the GDPR. In particular, the following shall apply to data subject access requests, complaints, and data breaches.
5.2The Data Processor shall notify the Data Controller without undue delay if it receives:
5.2.1a subject access request from a data subject; or
5.2.2any other complaint or request relating to the processing of the Personal Data.
5.3The Data Processor shall cooperate fully with the Data Controller and assist as required in relation to any subject access request, complaint, or other request, including by:
5.3.1providing the Data Controller with full details of the complaint or request;
5.3.2providing the necessary information and assistance in order to comply with a subject access request;
5.3.3providing the Data Controller with any Personal Data it holds in relation to a data subject (within the timescales required by the Data Controller); and
5.3.4providing the Data Controller with any other information requested by the Data Controller.
5.4The Data Processor shall notify the Data Controller immediately if it becomes aware of any form of Personal Data breach, including any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.
6. Appointment of a Data Protection Officer
6.1The Data Controller has appointed a Data Protection Officer in accordance with Article 37 of the GDPR, whose details are as follows: Vanessa Pedder, [email protected]
7. Liability and Indemnity
7.1The Data Controller shall be liable for, and shall indemnify (and keep indemnified) the Data Processor in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, the Data Processor and any SubProcessor arising directly or in connection with:
7.1.1any non-compliance by the Data Controller with the GDPR or other applicable legislation;
7.1.2any Personal Data processing carried out by the Data Processor or SubProcessor in accordance with instructions given by the Data Controller that infringe the GDPR or other applicable legislation; or
7.1.3any breach by the Data Controller of its obligations under this Agreement, except to the extent that the Data Processor or Sub-Processor is liable under sub-Clause 7.2.
7.2The Data Processor shall be liable for, and shall indemnify (and keep indemnified) the Data Controller in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, the Data Controller arising directly or in connection with the Data Processor’s Personal Data processing activities that are subject to this Agreement:
7.2.1only to the extent that the same results from the Data Processor’s or a Sub-Processor’s breach of this Agreement; and
7.2.2not to the extent that the same is or are contributed to by any breach of this Agreement by the Data Controller.
7.3The Data Controller shall not be entitled to claim back from the Data Processor or Sub-Processor any sums paid in compensation by the Data Controller in respect of any damage to the extent that the Data Controller is liable to indemnify the Data Processor or Sub-Processor under sub-Clause 7.1.
7.4Nothing in this Agreement (and in particular, this Clause 7) shall relieve either Party of, or otherwise affect, the liability of either Party to any data subject, or for any other breach of that Party’s direct obligations under the GDPR. Furthermore, the Data Processor hereby acknowledges that it shall remain subject to the authority of the ICO and shall co-operate fully therewith, as required, and that failure to comply with its obligations as a data processor under the GDPR may render it subject to the fines, penalties, and compensation requirements set out in the GDPR.
8. Intellectual Property Rights
All copyright, database rights, and other intellectual property rights subsisting in the Personal Data (including but not limited to any updates, amendments, or adaptations to the Personal Data made by either the Data Controller or the Data Processor) shall belong to the Data Controller or to any other applicable third party from whom the Data Controller has obtained the Personal Data under licence (including, but not limited to, data subjects, where applicable). The Data Processor is licensed to use such Personal Data under such rights only for the purposes of the Services, and in accordance with this Agreement.
9.1The Data Processor shall maintain the Personal Data in confidence, and in particular, unless the Data Controller has given written consent for the Data Processor to do so, the Data Processor shall not disclose any Personal Data supplied to the Data Processor by, for, or on behalf of, the Data Controller to any third party. The Data Processor shall not process or make any use of any Personal Data supplied to it by the Data Controller otherwise than in connection with the provision of the Services to the Data Controller.
9.2The Data Processor shall ensure that all personnel who are to access and/or process any of the Personal Data are contractually obliged to keep the Personal Data confidential.
9.3Nothing in this Agreement shall prevent either Party from complying with any requirement to disclose Personal Data where such disclosure is required by law. In such cases, the Party required to disclose shall notify the other Party of the disclosure requirements prior to disclosure, unless such notification is prohibited by law.
10. Appointment of Sub-Processors
10.1The customer hereby authorises Shadowfax to subcontract the Processing of Customer Personal Data to sub-processors as needed to provide a service. Shadowfax will inform the Data Controller of the details of such sub-processors upon written request from the Customer.
10.2Shadowfax will inform the Customer in advance of any intended changes concerning the addition or replacement of sub-processors by placing an update of sub-processors engaged on the Privacy page of the Shadowfax Website, thereby notifying the Customer through its website about the update and giving the Customer the opportunity to object to such changes. If Customer does not object in writing within ten (10) days of posting on the website, Customer is deemed to have accepted the new sub-processor. If Customer does object in writing within ten (10) days of posting on the website, Shadowfax and Customer will discuss possible resolutions. If no agreement can be reached, Customer may at its option terminate the Underlying Agreement with respect only to those services which cannot be provided by Shadowfax without the use of the objected-to new sub-processor.
10.3In the event that the Data Processor appoints a Sub-Processor the Data Processor shall:
10.3.1enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub-Processor the same obligations as are imposed upon the Data Processor by this Agreement and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
10.3.2ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the GDPR.
10.4In the event that a Sub-Processor fails to meet its obligations under any SubProcessing Agreement, the Data Processor shall remain fully liable to the Data Controller for failing to meet its obligations under this Agreement.
11. Deletion and/or Disposal of Personal Data
11.1The Data Processor shall, at the written request of the Data Controller, delete (or otherwise dispose of) the Personal Data or return it to the Data Controller in the format(s) reasonably requested by the Data Controller within a reasonable time after the earlier of the following:
11.1.1the end of the provision of the Services; or
11.1.2the processing of that Personal Data by the Data Processor is no longer required for the performance of the Data Processor’s obligations under this Agreement.
11.2Following the deletion, disposal, or return of the Personal Data under subClause 11.1, the Data Processor shall delete (or otherwise dispose of) all further copies of the Personal Data that it holds, unless retention of such copies is required by law, in which case the Data Processor shall inform the Data Controller of such requirement(s) in writing.
12. Law and Jurisdiction
12.1This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
12.2Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising herefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
SCHEDULE 1 Technical and Organisational Data Protection Measures
The following are the technical and organisational data protection measures referred to in Clause 4:
1. The Data Processor shall ensure that, in respect of all Personal Data it receives from or processes on behalf of the Data Controller, it maintains security measures to a standard appropriate to:
1.1the harm that might result from unlawful or unauthorised processing or accidental loss, damage, or destruction of the Personal Data; and
1.2the nature of the Personal Data.
2. In particular, the Data Processor shall:
2.1have in place, and comply with, a security policy which:
2.1.1defines security needs based on a risk assessment;
2.1.2allocates responsibility for implementing the policy to a specific individual (such as the Data Processor’s Data Protection Officer) or personnel;
2.1.3is provided to the Data Controller on or before the commencement of this Agreement;
2.1.4is disseminated to all relevant staff; and
2.1.5provides a mechanism for feedback and review.
2.2ensure that appropriate security safeguards and virus protection are in place to protect the hardware and software which is used in processing the Personal Data in accordance with best industry practice;
2.3prevent unauthorised access to the Personal Data;
2.4protect the Personal Data using pseudonymisation, where it is practical to do so;
2.5ensure that its storage of Personal Data conforms with best industry practice such that the media on which Personal Data is recorded (including paper records and records stored electronically) are stored in secure locations and access by personnel to Personal Data is strictly monitored and controlled;
2.6have secure methods in place for the transfer of Personal Data whether in physical form (for example, by using couriers rather than post) or electronic form (for example, by using AES256 encryption);
2.7password protect all computers and other devices on which Personal Data is stored, ensuring that all passwords are secure and that passwords are not shared under any circumstances;
2.8take reasonable steps to ensure the reliability of personnel who have access to the Personal Data;
2.9have in place methods for detecting and dealing with breaches of security (including loss, damage, or destruction of Personal Data) including:
2.9.1the ability to identify which individuals have worked with specific Personal Data;
2.9.2having a proper procedure in place for investigating and remedying breaches of the GDPR; and
2.9.3notifying the Data Controller as soon as any such security breach occurs.
2.10have a secure method of disposal of unwanted Personal Data including for back- ups, disks, print-outs, and redundant equipment.