Data Processing Agreement
Data Processing Agreement Vantify Limited v.6
This PROCESSOR AGREEMENT forms part of the Contract.
PARTIES
(1) Clients of Vantify who’s personal data Is processed for the explicit purpose of providing the service set out in this agreement (Data Controller)
(2) Vantify incorporated and registered in England and Wales with company number 07259147 whose registered office is 20 Grosvenor Place, London, England, SW1X 7HN (Processor)
BACKGROUND
(A) The Controller and Vantify entered into an agreement for facilities management related services that may require Vantify to process Personal Data on behalf of the Controller.
(B) This Personal Data Processing Agreement (Agreement) sets out the additional terms, requirements and conditions on which Vantify will process Personal Data when providing services under the Contract. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.
AGREED TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this Agreement.
Business Purposes | the services described in the Contract or any other purpose specifically identified in Schedule A. |
Data Subject | an individual who is the subject of Personal Data. |
Personal Data | means any information relating to an identified or identifiable natural person that is processed by Vantify as a result of, or in connection with, the provision of the services under the Contract; an identifiable natural person 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 that natural person. |
Processing, processes and process | either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording. organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Personal Data to third parties. |
Data Protection Legislation | all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) |
Personal Data Breach | a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed. |
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 Schedule to Commission Decision 2010/87/EU. |
1.2 This Agreement is subject to the Conditions and is incorporated into the Contract. Interpretations and defined terms set forth in the Contract apply to the interpretation of this Agreement.
1.3 The Schedules 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 Schedules.
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 Schedules, 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 Schedules, the provision contained in the Schedules will prevail;
(c) any of the provisions of this Agreement and the provisions of the Contract, the provisions of this Agreement will prevail; and
(d) any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.
2. PERSONAL DATA TYPES AND PROCESSING PURPOSES
2.1 The Controller and Vantify acknowledge that for the purpose of the Data Protection Legislation, the Controller is the controller and Vantify is the processor.
2.2 The Controller retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Vantify.
2.3 Schedule A describes the subject matter, duration, nature and purpose of processing and the Personal Data categories and Data Subject types in respect of which Vantify may process to fulfil the Business Purposes of the Contract.
3. PROCESSOR’S OBLIGATIONS
3.1 Vantify will only process the Personal Data as detailed in this Data Processing Agreement to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Controller’s written instructions. Vantify 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.
3.2 Vantify will promptly comply with any Controller request or instruction requiring Vantify to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3 Vantify will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Controller or this Agreement specifically authorises the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires Vantify to process or disclose Personal Data, Vantify must first inform the Controller of the legal or regulatory requirement and give the Controller an opportunity to object or challenge the requirement, unless the law prohibits such notice.
3.4 Taking into account the nature of Vantify’ processing, Vantify will assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s compliance obligations under the Data Protection Legislation, taking into account and the information available to Vantify, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
4. PROCESSOR’S EMPLOYEES
4.1 Vantify will ensure that all of its employees:
(a) are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data;
(b) have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
(c) are aware both of Vantify’ duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
4.2 Vantify will take reasonable steps to ensure the reliability, integrity and trustworthiness of all of Vantify’ employees with access to the Personal Data.
5. SECURITY
5.1 Vantify will at all times implement appropriate technical and organisational measures (See Schedule C) against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.
5.2 Vantify will 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 security measures.
6. PERSONAL DATA BREACH
6.1 Vantify will promptly and without undue delay notify the Controller if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
6.2 Vantify will immediately notify the Controller if it becomes aware of:
(a) any accidental, unauthorised or unlawful processing of the Personal Data; or
(b) any Personal Data Breach.
6.3 Where Vantify becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Controller with the following information:
(a) description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
(b) the likely consequences; and
(c) description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.
6.4 Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Vantify will reasonably co-operate with the Controller in the Controller’s handling of the matter, including:
(a) assisting with any investigation;
(b) providing the Controller with physical access to any facilities and operations affected;
(c) facilitating interviews with Vantify’ employees, former employees and others involved in the matter;
(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 Controller; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.
6.5 Vantify will not inform any third party of any Personal Data Breach without first obtaining the Controller’s prior written consent, except when required to do so by law.
6.6 Vantify agrees that the Controller has the sole right to determine:
(a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the Controller’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.
7. CROSS-BORDER TRANSFERS OF PERSONAL DATA
7.1 Vantify (or any subcontractor) will not transfer or otherwise process Personal Data outside the European Economic Area (EEA) unless such transfer is made in compliance with Data Protection Law, including the implementation of appropriate safeguards, and without obtaining the Controller’s prior written consent.
7.2 Where such transfer occurs, Vantify shall ensure that appropriate safeguards are in place including :
(a) Vantify is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. Vantify must identify in Schedule A the territory that is subject to such an adequacy finding; or
(b) Vantify participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that Vantify (including the UK International Data Transfer Agreement (IDTA), the UK Addendum to the EU Standard Contractual Clauses (SCCs), or the EU SCCs) so that Vantify (and, where appropriate, the Controller) 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 General Data Protection Regulation ((EU) 2016/679). Vantify must identify in Schedule A the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and Vantify must immediately inform the Controller of any change to that status;
7.3 The parties acknowledge that Schedule A may be updated from time to time by Vantify, and Vantify shall provide evidence of the safeguards implemented under this clause 7 upon the Controller’s reasonable request.
8. SUBCONTRACTORS
8.1 Vantify will only authorise a third party (subcontractor) to process the Personal Data if:
(a) the Controller provides prior written consent prior to the appointment of each subcontractor; and
(b) Vantify 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, and, upon the Controller’s written request, provides the Controller with copies of such contracts; and
(c) Vantify maintains control over all Personal Data it entrusts to the subcontractor; and
(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 Schedule A and include any subcontractor’s name and type of processing activity performed.
8.3 The Parties consider Vantify to control any Personal Data controlled by or in the possession of its subcontractors.
9. COMPLAINTS, DATA SUBJECT REQUESTS & THIRD-PARTY RIGHTS
9.1 Vantify must, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Controller as the Controller may reasonably require, to enable the Controller to comply with:
(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify 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 Controller by any supervisory authority under the Data Protection Legislation.
9.2 Vantify will notify the Controller immediately 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 Vantify will notify the Controller within 3 working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
9.4 Vantify will give the Controller its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5 Vantify will not disclose the Personal Data to any Data Subject or to a third party other than at the Controller’s request or instruction, as provided for in this Agreement or as required by law.
10. TERM AND TERMINATION
10.1 This Agreement will remain in full force and effect so long as:
(a) the Contract remains in effect, or
(b) Vantify retains any Personal Data related to the Contract 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 Contract in order to protect Personal Data will remain in full force and effect.
10.3 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Service Agreement obligations, the parties will suspend the processing of 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 one month, they may terminate the Contract on written notice to the other party.
11. DATA RETURN AND DESTRUCTION
11.1 At the Controller’s request, Vantify will give the Controller a copy of or access to all or part of the Controller’s Personal Data in its possession or control in the format and on the media reasonably specified by the Controller.
11.2 On termination of the Contract for any reason or expiry of its term, Vantify will securely delete or destroy or, if directed in writing by the Controller, return and not retain, all or any Personal Data related to this Agreement in its possession or control. Vantify will enquire of the Controller whether the Controller wants the Personal Data to be deleted, destroyed, returned or retained.
11.3 If any law, regulation, or government or regulatory body requires Vantify to retain any documents or materials that Vantify would otherwise be required to return or destroy, it will notify the Controller in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
12. RECORDS
12.1 Vantify will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Controller, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 5.1 (Records).
12.2 Vantify will ensure that the Records are sufficient to enable the Controller to verify Vantify’ compliance with its obligations under this Agreement and Vantify will provide the Controller with copies of the Records upon request.
13. AUDIT
13.1 Vantify will permit the Controller and its third-party representatives to audit Vantify’ compliance with its Agreement obligations. Vantify will give the Controller and its third-party representatives all necessary assistance to conduct such audits.
13.2 The notice requirements in clause 13.1 will not apply if the Controller reasonably believes that a Personal Data Breach occurred or is occurring, or Vantify is in breach of any of its obligations under this Agreement or any Data Protection Legislation.
14. WARRANTIES
14.1 Vantify warrants and represents that:
(a) its employees, subcontractors, agents and any other person or persons accessing Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation relating to the Personal Data;
(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 Contract’s contracted services; and
(d) considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:
(i) the harm that might result from such unusers or unlawful processing or accidental loss, destruction 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 Controller warrants and represents that Vantify’ expected use of the Personal Data for the Business Purposes and as specifically instructed by the Controller will comply with the Data Protection Legislation.
15. INDEMNIFICATION
15.1 Vantify carries relevant liability, indemnity and cyber insurances which form the limit of liability to which Vantify agrees to reimbursement the controller in regard of any failure of by Vantify or associated 3rd parties to meet the requirements of this Agreement.
SCHEDULE A – PERSONAL DATA PROCESSING PURPOSES & DETAILS
Subject matter of processing:
• Responding to and processing emails
• Telephone Calls
• Staff Training
Only if the Occupier Portal is licenced, then the DPA also covers the two points in bold below:
• Social Media Chat Content
• User Avatar Photos
Duration of Processing:
• Processing is transitory and Data Not Stored
• Retention Periods stipulated In Existing Service Level Agreements
Nature of Processing:
• Email Forwarding Services
• Viewing of or access to Personal data In the course of providing the service
• Hosted Storage of personal data
• Contacting of Individuals on behalf of The Controller
• Profiling of data to provide reporting services
Only if the Occupier Portal is licenced, then the DPA also covers the two points in bold below:
• Hosting of Social Media Chat Content
• Hosting of User Avatar Photos
Business Purposes:
• Security of Email
• Provision of Vantify Services
• Performance of Email Systems
• Security and Maintenance of technical Infrastructure
• Assessment of quality of service
• Protection In the event of legal proceedings
• Providing and monitoring the status of Staff Training
• Communication with Interested parties, or groups of Interested parties, remotely
Personal Data Categories:
• Email Contact Details
• Staff training Information
• Business Voice recordings
General Public Voice recordings Client, Supplier and Staff Names, Addresses and Phone Numbers
Only if the Occupier Portal is licenced, then the DPA also covers the two points in bold below:
• General Public chat conversations
• Likeness Photos
Data Subject Types:
• Staff
• Clients
• Suppliers
• Business Contacts
General Public
Approved Subcontractors:
• BT – For call recordings
• Google – For server architecture
• Atlassian – Product development tool
• Zoom – For online conference meetings
• Microsoft – For emails & online conference meeting (Teams) and CRM (Dynamics)
• Training Platform Providers
• Helpdesk Ticketing System Providers
SCHEDULE B – SECURITY MEASURES
Data shall be processed and protected in line with the requirements of this Agreement and shall be protected in line with the requirements of ISO27001, including:
• Access Security Controls
• Cryptography and Pseudonymisation
• Physical security
• Backup and Business Continuity
• Network Security, including password management, 2 factor authentication, asset management and Anti-malware
• Secure Communications
• Staff training and Awareness
• Incident Management
• The management of security within the supply chain
• The secure development of software, software provision and Hosting Services