DATA PROCESSING AGREEMENT
This Agreement is made between: (1) The Buyer (the “Controller”); and (2) Identilam (the “Processor”).
(A) The Controller processes Personal Data in connection with its business activities;
(B) The Processor processes Personal Data on behalf of other businesses and organisations;
(C) The Controller wishes to engage the services of the Processor to process personal data on its behalf;
(D) Article 17(2) of the Data Protection Directive 95/46/EC (as hereinafter defined) provides that, where processing of personal data is carried out by a processor on behalf of a data controller the controller must choose a processor providing sufficient guarantees in respect of the technical security measures and organisational measures governing the processing to be carried out, and must ensure compliance with those measures;
(E) Articles 17(3) and 17(4) of the Data Protection Directive require that where processing is carried out by a processor on behalf of a controller such processing shall be governed by a contract or legal act binding the processor to the controller stipulating, in particular, that the processor shall act only on instructions from the controller and shall comply with the technical and organisational measures required under the appropriate national law to protect personal data against accidental or unlawful destruction or accidental loss, alternation, unauthorised disclosure or access and against all other unlawful forms of processing;
(F) In compliance with the above-mentioned provisions of Article 17 of the Data Protection Directive the Controller and Processor wish to enter into this processing security Agreement.
THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:
1 Definitions and Interpretation
1.1 In this Agreement the following words and phrases shall have the following meanings, unless inconsistent with the context or as otherwise specified:
“Data Protection Directive” shall mean Directive 95/46/EC of the European Parliament and Council of 24th October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; “national law” shall mean the law of the Member State in which the Processor is established;
“personal data” shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic cultural or social identity;
“processing of personal data” shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alternation, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
“sub-contract” and “sub-contracting” shall mean the process by which either party arranges for a third party to carry out its obligations under this Agreement and “Sub Contractor” shall mean the party to whom the obligations are subcontracted; and
“Technical and organisational security measures” shall mean measures to protect personal data against accidental or unlawful destruction or accidental loss, alternation, unauthorised disclosure or access and against all other unlawful forms of processing.
2.1 In consideration of the Controller engaging the services of the Processor to process personal data on its behalf the Processor shall comply with the security, confidentiality and other obligations imposed on it under this Agreement.
3. Security Obligations
3.1 The Processor shall only carry out those actions in respect of the personal data processed on behalf of the Controller as are expressly authorised by the Controller.
3.2 The Processor shall take such Technical and Organisational Security Measures as are required under its own national law to protect personal data processed by the Processor on behalf of the Controller against unlawful forms of processing. Such Technical and Organisational measures shall include, as a minimum standard of protection, compliance with the legal and practical security requirements set out in Appendix 1 of this Agreement.
4.1 The Processor agrees that it shall maintain the personal data processed by the Processor on behalf of the Controller in confidence. In particular, the Processor agrees that, save with the prior written consent of the Controller, it shall not disclose any personal data supplied to the Processor by, for, or on behalf of, the Controller to any third party.
4.2 The Processor shall not make any use of any personal data supplied to it by the Controller otherwise than in connection with the provision of services to the Controller.
4.3 The obligations in clauses 4.1 and 4.2 above shall continue for a period of five years after the cessation of the provision of services by the Processor to the Controller.
4.4 Nothing in this agreement shall prevent either party from complying with any legal obligation imposed by a regulator or court. Both parties shall however, where possible, discuss together the appropriate response to any request from a regulator or court for disclosure of information.
5.1 The Processor shall not sub-contract any of its rights or obligations under this Agreement without the prior written consent of the Controller.
5.2 Where the Processor, with the consent of the Controller, sub-contracts its obligations under this agreement it shall do so only by way of a written agreement with the Sub-Contractor which imposes the same obligations in relation to the security of the processing on the Sub-Contractor as are imposed on the Processor under this Agreement.
5.3 For the avoidance of doubt, where the Sub-Contractor fails to fulfil its obligations under any subprocessing agreement, the Processor shall remain fully liable to the Controller for the fulfilment of its obligations under this Agreement
6 Term and Termination
6.1 This Agreement shall continue in full force and effect for so long as the Processor is processing personal data on behalf of the Controller.
6.2 Within ten (10) days following termination of this Agreement the Processor shall, at the direction of the Controller, (a) comply with any other agreement made between the parties concerning the return or destruction of data, or (b) return all personal data passed to the Processor by the Controller for processing, or (c) on receipt of instructions from the Controller, destroy all such data unless prohibited from doing so by any applicable law.
7. Governing Law
7.1 This Agreement shall be governed by and construed in accordance with the national law of the Member state in which the Controller is established
1 Legal Requirements
1.1 The Processor shall, in respect of the processing of personal data on behalf of the Controller, identify and comply with any specific security provisions imposed by its national law.
2 Practical Security Measures
2.1 In compliance with its obligations under clause 3.2 with regard to the processing of personal data on behalf of the Controller, the Processor, as a minimum requirement, shall give due consideration to the following types of security measures:
2.1.1 Information Security Management Systems;
2.1.2 Physical Security;
2.1.3 Access Control;
2.1.4 Security and Privacy Enhancing Technologies;
2.1.5 Awareness, training and security checks in relation to personnel;
2.1.6 Incident/Response Management/Business Continuity; and
2.1.7 Audit Controls/Due Diligence
DATA RETENTION POLICY
This Policy sets out the obligations of Identilam Ltd, John Bostock House, Faygate, Horsham, West Sussex, RH12 4DN (“the Company”) regarding retention of personal data collected, held, and processed by the Company in accordance with EU Regulation 2016/679 General Data Protection Regulation (“GDPR”).
The GDPR defines “personal data” as any information relating to an identified or identifiable natural person (a “data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an 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.
The GDPR also addresses “special category” personal data (also known as “sensitive” personal data). Such data includes, but is not necessarily limited to, data concerning the data subject’s race, ethnicity, politics, religion, trade union membership, genetics, biometrics (if used for ID purposes), health, sex life, or sexual orientation.
Under the GDPR, personal data shall be kept in a form which permits the identification of data subjects for no longer than is necessary for the purposes for which the personal data is processed. In certain cases, personal data may be stored for longer periods where that data is to be processed for archiving purposes that are in the public interest, for scientific or historical research, or for statistical purposes (subject to the implementation of the appropriate technical and organisational measures required by the GDPR to protect that data).
In addition, the GDPR includes the right to erasure or “the right to be forgotten”. Data subjects have the right to have their personal data erased (and to prevent the processing of that personal data) in the following circumstances:
a) Where the personal data is no longer required for the purpose for which it was originally collected or processed (see above);
b) When the data subject withdraws their consent;
c) When the data subject objects to the processing of their personal data and the Company has no overriding legitimate interest;
d) When the personal data is processed unlawfully (i.e. in breach of the GDPR);
e) When the personal data has to be erased to comply with a legal obligation; or
f) Where the personal data is processed for the provision of information society services to a child.
This Policy sets out the type(s) of personal data held by the Company for marketing, maintaining customer relationships, providing products and services, entering into contracts, billing and accounting, and managing our human resources, the period(s) for which that personal data is to be retained, the criteria for establishing and reviewing such period(s), and when and how it is to be deleted or otherwise disposed of.
For further information on other aspects of data protection and compliance with the GDPR, please refer to the Company’s Data Protection Policy.
2. Aims and Objectives
2.1 The primary aim of this Policy is to set out limits for the retention of personal data and to ensure that those limits, as well as further data subject rights to erasure, are complied with. By extension, this Policy aims to ensure that the Company complies fully with its obligations and the rights of data subjects under the GDPR.
2.2 In addition to safeguarding the rights of data subjects under the GDPR, by ensuring that excessive amounts of data are not retained by the Company, this Policy also aims to improve the speed and efficiency of managing data.
3.1 This Policy applies to all personal data held by the Company and by third-party data processors processing personal data on the Company’s behalf.
3.2 Personal data, as held by the Company is stored in the following ways and in the following locations:
a) The Company’s servers, located within the EEA;
b) Third-party servers, operated by Microsoft, The Bunker, WeTransfer, Dropbox, Google, Auth0, Sage, Sage CRM, and located within the EEA;
c) Third-party servers, operated by Sage and located within the EEA and fully compliant with GDPR. Sage is our accounting package and used to store customer details and billing information;
d) Third-party servers, operated by Intercom and located in the US and certified under the E.U.-U.S. Privacy Shield. Intercom is used to provide live chat functionality to our websites and web applications;
e) Third-party servers, operated by DotDigital and located within the EEA. DotDigital is used to provide email messaging services;
f) Computers permanently located in the Company’s premises at John Bostock House, Faygate, Horsham, West Sussex, RH12 4DN;
g) Laptop computers and other mobile devices provided by the Company to its employees;
h) Computers and mobile devices owned by employees, agents, and sub-contractors;
i) Physical records stored in John Bostock House, Faygate, Horsham, West Sussex, RH12 4DN;
4. Data Subject Rights and Data Integrity
All personal data held by the Company is held in accordance with the requirements of the GDPR and data subjects’ rights thereunder, as set out in the Company’s Data Protection Policy.
4.1 Data subjects are kept fully informed of their rights, of what personal data the Company holds about them, how that personal data is used as set out in Parts 12 and 19 of the Company’s Data Protection Policy, and how long the Company will hold that personal data (or, if no fixed retention period can be determined, the criteria by which the retention of the data will be determined).
4.2 Data subjects are given control over their personal data held by the Company including the right to have incorrect data rectified, the right to request that their personal data be deleted or otherwise disposed of (notwithstanding the retention periods otherwise set by this Data Retention Policy), the right to restrict the Company’s use of their personal data, as set out in Parts 13 to 16 of the Company’s Data Protection Policy.
5. Technical and Organisational Data Security Measures
5.1 Technical measures are in place within the Company to protect the security of personal data. Please see the Company’s Data Protection Policy for details.
5.2 Organisational measures are in place within the Company to protect the security of personal data. Please see the Company’s Data Protection Policy for details.
6. Data Disposal
Upon the expiry of the data retention periods set out below in Part 7 of this Policy, or when a data subject exercises their right to have their personal data erased, personal data shall be deleted, destroyed, or otherwise disposed of as follows:
6.1 Personal data stored electronically shall be deleted securely and permanently using the most appropriate method for the type of data;
6.2 Personal data stored in hardcopy form shall be shredded or sent for destruction by a confidential waste provider;
7. Data Retention
7.1 As stated above, and as required by law, the Company shall not retain any personal data for any longer than is necessary in light of the purpose(s) for which that data is collected, held, and processed.
7.2 Different types of personal data, used for different purposes, will necessarily be retained for different periods (and its retention periodically reviewed), as set out below.
7.3 When establishing and/or reviewing retention periods, the following shall be taken into account:
a) The objectives and requirements of the Company;
b) The type of personal data in question;
c) The purpose(s) for which the data in question is collected, held, and processed;
d) The Company’s legal basis for collecting, holding, and processing that data;
e) The category or categories of data subject to whom the data relates;
7.4 If a precise retention period cannot be fixed for a particular type of data, criteria shall be established by which the retention of the data will be determined, thereby ensuring that the data in question, and the retention of that data, can be regularly reviewed against those criteria.
7.5 Notwithstanding the following defined retention periods, certain personal data may be deleted or otherwise disposed of prior to the expiry of its defined retention period where a decision is made within the Company to do so (whether in response to a request by a data subject or otherwise):
7.5.1 Data used for managing customer accounts (Customer Records) will be reviewed annually and held for a period of three years following the closure of the customer’s account. This is company policy.
7.5.2 Data used for legal documentation and contracts related to the provision of products and services (Contractual Arrangements) will be reviewed annually held for a period of three years following contract termination. This is company policy.
7.5.3 Data used for managing and recording the Company’s financial transactions (Financial Records) will be held for a period for a period of five years following the current year. This is HMRC policy.
7.5.4 Data used for managing human resources including payroll records (Personnel Records) will be reviewed annually and held for a period of six years following the current year. This is a CIPD recommendation.
7.5.5 Data used for monitoring usage or our products and services and providing customer and technical support (Support) will be reviewed annually and held for a period of two years following the closure of a subject’s account. This is company policy.
7.5.6 Data used for marketing our products and services (Marketing) will be reviewed annually and held for a period of one month following the withdrawal of a subject’s consent. This is company policy.
8. Roles and Responsibilities
8.1 The Company’s Data Protection Officer can be contacted using firstname.lastname@example.org
8.2 The Data Protection Officer shall be responsible for overseeing the implementation of this Policy and for monitoring compliance with this Policy, the Company’s other Data Protection-related policies (including, but not limited to, its Data Protection Policy), and with the GDPR and other applicable data protection legislation.
8.3 The Data Protection Officer shall be directly responsible for ensuring compliance with the above data retention periods throughout the Company.
8.4 Any questions regarding this Policy, the retention of personal data, or any other aspect of GDPR compliance should be referred to the Data Protection Officer.
9. Implementation of Policy
This Policy shall be deemed effective as of 01.01.2020. No part of this Policy shall have retroactive effect and shall thus apply only to matters occurring on or after this date.