Data Processing Agreement

1. Definitions and Interpretation

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

1.1 Definitions:

Authorised Persons: the persons or categories of persons that the Customer authorises to give Conosco written personal data processing instructions and from whom Conosco agrees solely to accept such instructions.

Business Purposes: the services to be provided by Conosco to the Customer as described in the Master Agreement and any other purpose specifically identified in Appendix A.

Commissioner: the Information Commissioner (see Article 4(A3), UK General Data Protection Regulation (GDPR) and section 114, Data Privacy Act (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:

(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of personal data.

Data Subject: the identified or identifiable living individual to whom the Personal Data relates.

EU GDPR: the General Data Protection Regulation ((EU) 2017/679).

EEA: the European Economic Area.

Master Services Agreement: the agreement between the parties in respect of legal terms. (the nature of services are described in the associated “Schedules” with the parameters of the services defined in the “Order Forms” by Conosco.

Personal Data: any information relating to an identified or identifiable living individual that is processed by Conosco on behalf of the Customer as a result of, or in connection with, the provision of the services under the Master Agreement (see definition); 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.

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 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.

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.

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.

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 faxes and email.

1.5 In the case of conflict or ambiguity between 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 Conosco agree and acknowledge that for the purpose of the Data Protection Legislation:

(a) the Customer is the Controller and Conosco 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 Conosco.

(c) Appendix A describes the subject matter, duration, nature and purpose of the processing and the Personal Data categories and Data Subject types in respect of which Conosco may process the Personal Data to fulfil the Business Purposes.

3. Conosco’s obligations

3.1 Conosco 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. Conosco 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. Conosco must promptly notify the Customer if, in its opinion, the Customer’s instructions do not comply with the Data Protection Legislation.

3.2 Conosco must comply promptly with any Customer written instructions requiring Conosco to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3 Conosco 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 or EU law, court or regulator (including the Commissioner). If a domestic or EU law, court or regulator (including the Commissioner) requires Conosco to process or disclose the Personal Data to a third-party, except to the extent limited or restricted in doing so, Conosco 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 or EU law prohibits the giving of such notice.

3.4 Conosco will reasonably assist the Customer, at no additional cost to the Customer, with meeting the Customer’s compliance obligations under the Data Protection Legislation, considering the nature of Conosco’s processing and the information available to Conosco, 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 Considering the current technology environment and implementation costs, Conosco will take appropriate technical and organisational measures (described in Annex B) 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.

3.6 Conosco must notify the Customer promptly of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting Conosco’s performance of the Master Agreement or this agreement.

4. Conosco’s employees

4.1 Conosco 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 Conosco’s duties and their personal duties and obligations under the Data Protection Legislation and this agreement.

5. Security

5.1 Conosco 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.

5.2 Conosco 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 Conosco will without undue delay and in any event within 24 hours 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.

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

6.2 Where Conosco 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, Conosco will reasonably co-operate with 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 Conosco’s 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; 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 Conosco 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 or EU law.

6.5 Conosco 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 Conosco will cover all reasonable evidenced expenses associated with the performance of the obligations under clause 6.1 to clause 6.3 unless the matter arose from the Customer’s specific written instructions, negligence, willful default or breach of this agreement or the MSA, in which case the Customer will cover all reasonable expenses.

6.7 Conosco will also reimburse the Customer for actual reasonable evidenced 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 Conosco directly caused such, including all costs of notice and any remedy as set out in Clause 6.5.

7. Cross-border transfers of personal data

Conosco (and any subcontractor) must not transfer or otherwise process the Personal Data outside the European Economic Area (which for the purposes of this agreement shall include the UK) without obtaining the Customer’s prior written consent. Where such consent is granted, Conosco may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions: (a) Conosco 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; or (b) Conosco participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that Conosco (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; or (c) the transfer otherwise complies with the Data Protection Legislation.

8. Subcontractors

8.1 Conosco may authorise a third-party (subcontractor) to process the Personal Data if:

(a) Conosco gives the Customer notice of the appointment of any such subcontractor and provides the Customer with full details in writing of the processing to be undertaken by the subcontractor thereby giving the Customer the opportunity to object to such appointment. If Conosco so notifies the Customer of any changes to sub-contractors and the Customer objects to such changes, the Customer will be entitled to terminate the MSA (without liability for either party) if the Customer has reasonable grounds for objecting to such changes by reason of the changes causing, or being likely to cause, the Customer to be in breach of applicable Data Protection Legislation;

(b) Conosco 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;

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

8.2 Those subcontractors approved as at the commencement of this agreement are as set out in the relevant Schedule.

9. Complaints, data subject requests and third-party rights

9.1 Conosco shall 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 Conosco shall 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 Conosco shall promptly notify the Customer 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 Conosco will give the Customer its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5 Conosco shall 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 or EU 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) Conosco 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.

11. Data return and destruction

11.1 At the Customer’s request, Conosco 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, Conosco will securely delete or destroy or, 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, in accordance with its retention policy.

11.3 If any law, regulation, or government or regulatory body requires Conosco to retain any documents, materials or Personal Data that Conosco 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.

11.4 Where requested by the Customer, Conosco will certify in writing to the Customer that it has deleted or destroyed the Personal Data within seven days after it completes the deletion or destruction.

12. Records

12.1 Conosco 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 it applies (Records) to demonstrate is compliance with this Agreement and allow for annual audits by the Customer or the Customer’s designated auditor (subject to appropriate confidentiality undertakings being entered into), only so far as is necessary in order to demonstrate compliance and provided that the Customer Provides Conosco with no less than 30 days’ notice of such audit or inspection (except where the Customer reasonably believes that a Personal Data Breach has occurred or is occurring, or Conosco is in material breach of any of its obligations under this Agreement or any of the Data Protection Legislation); and the parties agree the scope, duration, and purpose of such audit or inspection in advance. If the Customer becomes privy to any confidential information of Conosco as a result of this Agreement, the Customer and/or its auditor shall hold such confidential information in confidence and, unless required by law, not make the confidential information available to any third party, or use it for any other purpose. The Customer acknowledges that the Conosco shall only be required to use reasonable endeavours to assist the Customer in procuring access to any third-party assets, records or information as part of any audit.

13. Audit

13.1 If a Personal Data Breach occurs or is occurring, or Conosco becomes aware of a breach of any of its obligations under this agreement or any of the Data Protection Legislation, Conosco 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;

and

14. Liability

Any limitation of liability set forth in the Master Agreement will apply to limit Conosco’s liability under this agreement.

15. Notice

15.1 Any notice or other communication given to a party under or in connection with this agreement must be in writing and delivered to the data privacy contacts provided by the parties.