Data Processing and Sharing Agreement
v.2.0 last updated 1st February 2020 This Agreement is for the benefit of all clients of WIC
This Agreement describes how WorkInConfidence Limited (“WIC”) (a company registered in England and Wales with registered address at Suite 601 Fountain House, 2 Queens Walk, Reading, RG1 7QF and registered number 08255296) handles the data of its client organisations (“Customer”) and their staff.
(A) Customer has certain data about its staff and stakeholders in its organisation;
(B) Customer wishes to engage the services of WIC to provide feedback services to it which involves the processing of data on Customer’s behalf.
(C) Article 17(2) of the Data Protection Directive 95/46/EC (as hereinafter defined) and other applicable legislation provides that, where processing of personal data is carried out by a party on behalf of a data controller, that party must choose an entity 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.
(D) Articles 17(3) and 17(4) of the Data Protection Directive require that where processing is carried out on behalf of a controller such processing shall be governed by a contract or binding the party doing the processing to the Customer and stipulating technical and organisational measures required under the appropriate national law to protect personal data against accidental or unlawful destruction or accidental loss, unauthorised disclosure or access and against all other unlawful forms of processing.
(E) In compliance with the above-mentioned provisions of Article 17 of the Data Protection Directive WIC gives Customer protections in this Agreement.
THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Agreement the following words and phrases 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 United Kingdom;
“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. CONSIDERATION AND RELATIONSHIP
2.1 In consideration of Customer engaging the services of WIC to process personal data on its behalf WIC shall comply with the security, confidentiality and other obligations imposed on it under this Agreement.
2.2 The Customer is data controller. WIC believes that as a result of it being able to prevent disclosure of user identities it too is a data controller. (The relevant legislation allows for joint data controllers). If the Customer does not believe this is appropriate it will notify WIC and WIC will assume the relationship of data processor.
2.3 Data on conversations within the WIC system is only available as described in the system. WIC cannot be required to:
a) deliver a wholesale download of data;
b) reveal the identities of system users.
3. SECURITY OBLIGATIONS OF WIC
3.1 WIC shall only carry out those actions in respect of the personal data processed on behalf of Customer as are expressly authorised by Customer or clear from the system description.
3.2 WIC shall take such Technical and Organisational Security Measures as are required under its own national law to protect personal data processed by WIC on behalf of Customer against unlawful forms of processing. In particular, WIC has implemented and will maintain the following technical and organisational measures:
a) appropriate measures to ensure security of the WIC Services;
b) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by WIC;
c) measures to control access rights to the WIC Services.
3.3 WIC will process Customer Data only as is appropriate for operation of the WIC Services or as otherwise agreed from time to time between WIC and the Customer.
4.1 WIC agrees that it shall maintain the personal data processed by WIC on behalf of Customer in confidence. In particular, WIC agrees that, save with the prior written consent of Customer, it shall not disclose any personal data supplied to WIC by, for, or on behalf of, Customer to any third party.
4.2 WIC shall not make any use of any personal data supplied to it by Customer otherwise than in connection with the provision of WIC services to Customer.
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 WIC Services to Customer.
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. SECURITY BREACH NOTIFICATION.
5.1 WIC will notify Customer of a security incident without undue delay after becoming aware of any such incident and take reasonable steps to mitigate the effects and to minimise any damage resulting therefrom.
5.2 To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, WIC will include in the notification under section 5.1 such information about the security incident as WIC is reasonably able to disclose to Customer, taking into account the nature of the WIC Services, the information available to WIC, and any restrictions on disclosing the information, such as confidentiality.
6. BUSINESS CONTINUITY, DISASTER RECOVERY AND INSURANCES
6.1 WIC will maintain a clear business continuity and disaster recovery plan. Such plan is part of the service and will be performed by WIC when appropriate.
6.2 WIC will maintain a reasonable level of appropriate insurances.
7. DATA SUBJECT RIGHTS
7.2 In the event of a subject access request appropriate information needs to be viewed and accessed via the user interface for Customer and its users as the data is encrypted. Parties will provide reasonable assistance to each other in a timely manner to assist in such requests.
8. PROVISION OF SERVICES TO WIC
8.1 WIC uses third parties to carry out services such as web hosting and caching. Where doing so
a) WIC will take all reasonable and professional care in selecting and managing such providers;
b) WIC shall ensure such providers are under a duty of confidentiality to WIC, its clients and users;
c) WIC shall remain fully liable to Customer for the fulfilment of its obligations under this Agreement
d) WIC will ensure that Standard Contractual Clauses (for GDPR purposes) will be in place for any such supplier who is outside the EEA either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not be required if there have been has adopted binding alternative recognised compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
9. TERM AND TERMINATION
9.1 This Agreement shall continue in full force and effect for so long as WIC is processing personal data on behalf of Customer.
9.2 Subject to any other terms agreed between the Parties, no later than 90 days from the earlier of request by the Customer or termination of this Agreement WIC will delete all customer data.
9.3 Confidentiality undertakings shall continue post termination of the remainder of this Agreement per Clause 4.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.