Docs : Data Processing Agreement

Data Processing Agreement

Last updated: 24 May 2018

This DPA is entered into between the Company and the Customer and is incorporated into and governed by the terms of the Agreement.

Definitions

Any capitalised term not defined in this DPA shall have the meaning given to it in the Agreement.

Affiliates	means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party;
Agreement	means the agreement between the Company and the Customer for the provision of the Services;
Controller	means the Customer;
Data Protection Law	means the GDPR and/or any subsequent amendment or replacement or supplementary legislation;
Data Subject	shall have the same meaning set out in Data Protection Law;
DPA	means this data processing agreement together with Exhibits A and B;
GDPR	means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016;
Personal Data	shall have the same meaning as in Data Protection Law;
Processor	means the Company;
Standard Contractual Clauses	means the EU model clauses for personal data transfer from controllers to processors c2010-593 - Decision 2010/87EU;
Sub-Processor	means any person or entity engaged by the Company or its Affiliate to process Personal Data in the provision of the Services to the Customer.

Purpose
1. The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Agreement. In providing the Services, the Processor shall process Customer Data on behalf of the Controller. Customer Data may include Personal Data. The Processor will process and protect such Personal Data in accordance with the terms of this DPA.
Scope
1. In providing the Services to the Controller pursuant to the terms of the Agreement, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Agreement and the Controller’s instructions documented in the Agreement and this DPA.
Processor Obligations
1. The Processor may collect, process or use Personal Data only within the scope of this DPA.
2. The Processor confirms that it shall process Personal Data on behalf of the Controller and shall take steps to ensure that any natural person acting under the authority of the Processor who has access to Personal Data shall only process the Personal Data on the documented instructions of the Controller.
3. The Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller, breach any Data Protection Law.
4. The Processor shall ensure that all employees, agents, officers and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
5. The Processor shall implement appropriate technical and organisational procedures to protect Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
6. The Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In assessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
7. The technical and organisational measures detailed in Exhibit B shall be at all times adhered to as a minimum security standard. The Controller accepts and agrees that the technical and organisational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in the attachments to this DPA.
8. The Controller acknowledges and agrees that, in the course of providing the Services to the Controller, it may be necessary for the Processor to access the Personal Data to respond to any technical problems or Controller queries and to ensure the proper working of the Services. All such access by the Processor will be limited to those purposes.
9. Where Personal Data relating to an EU Data Subject is transferred outside of the EEA it shall be processed in accordance with the provisions of the Standard Contractual Clauses, unless the processing takes place: (i) in a third country or territory recognised by the EU Commission to have an adequate level of protection; or (ii) by an organisation located in a country which has other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
10. Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller's obligation to respond to requests for exercising the Data Subject's rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.
Controller Obligations
1. The Controller represents and warrants that it shall comply with the terms of the Agreement, this DPA and Data Protection Law.
2. The Controller represents and warrants that it has obtained any and all necessary permissions and authorisations necessary to permit the Processor, its Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
3. The Controller is responsible for compliance with all Data Protection Law, including requirements with regards to the transfer of Personal Data under this DPA and the Agreement.
4. All Affiliates of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
5. The Controller shall implement appropriate technical and organisational procedures to protect Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. The Controller shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
6. The Controller shall take steps to ensure that any natural person acting under the authority of the Controller who has access to Personal Data only processes the Personal Data on the documented instructions of the Controller.
7. The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. The Processor will process the request to the extent it is lawful, and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
8. The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data, assisting with audits, inspections or DPIAs by the Processor, may result in additional fees. In such case, the Processor will notify the Controller of its fees for providing such assistance in advance, unless otherwise agreed.
Sub-Processors
1. The Controller acknowledges and agrees that: (i) Affiliates of the Processor may be used as Sub-processors; and (ii) the Processor and its Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
2. All Sub-processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor set out in this DPA.
3. Where Sub-processors are located outside of the EEA, the Processor confirms that such Sub-processors: (i) are located in a third country or territory recognised by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with the Processor; or (iii) have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
4. The Processor shall make available to the Controller the current list of Sub-processors which shall include the identities of Sub-processors and their country of location. During the term of this DPA, the Processor shall provide the Controller with prior notification, via email, of any changes to the list of Sub-processor(s) who may process Personal Data before authorising any new or replacement Sub-processor(s) to process Personal Data in connection with the provision of the Services.
5. The Controller may object to the use of a new or replacement Sub-processor, by notifying the Processor promptly in writing within ten (10) Business Days after receipt of the Processor’s notice. If the Controller objects to a new or replacement Sub-processor, the Controller may terminate the Agreement with respect to the Services which cannot be provided by the Processor without the use of the new or replacement Sub-processor. The Processor will refund the Controller any prepaid fees covering the remainder of the Term of the Agreement (following the effective date of termination with respect to such terminated Services.
Liability
1. The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
2. The parties agree that the Processor shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Sub-processors to the same extent the Processor would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
3. The parties agree that the Controller shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Affiliates as if such acts, omissions or negligence had been committed by the Controller itself.
4. The Controller shall not be entitled to recover more than once in respect of the same claim.
Audit
1. The Processor shall make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.  
2. Any audit conducted under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in the Agreement. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may conduct a more extensive audit which will be: (i) at the Controller’s expense; (ii) limited in scope to matters specific to the Controller and agreed in advance; (iii) carried out during UK business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iv) conducted in a way which does not interfere with the Processor’s day-to-day business.
3. This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
Data Breach
1. The Processor shall notify the Controller without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Personal Data (“Data Breach”).
2. The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach, and to assist the Controller in meeting the Controller’s obligations under applicable law.
Compliance, Cooperation and Response
1. In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law. The Controller shall reimburse the Processor for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as applicable.
2. The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Controller, unless such notification is not permitted under applicable law or a relevant court order.
3. The Processor may make copies of and/or retain Personal Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
4. The Processor shall reasonably assist the Controller in meeting its obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of processing and the information available to the Processor.
5. The parties acknowledge that it is the duty of the Controller to notify the Processor within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of the Processor. The Processor shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organisational measures to maintain compliance. If the parties agree that amendments are required, but the Processor is unable to accommodate the necessary changes, the Controller may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
6. The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA.
Term and Termination
1. The Processor will only process Personal Data for the term of the DPA. The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.
2. The Processor shall at the choice of the Controller, upon receipt of a written request received within 30 days the end of the provision of the Services relating to processing, delete or return Personal Data to the Controller. The Processor shall in any event delete all copies of Personal Data in its systems within 60 days of the effective date of termination of the Agreement unless: (i) applicable law or regulations require storage of the Personal Data after termination; or (ii) partial Personal Data of the Customer is stored in backups, then such Personal Data shall be deleted from backups 1 year after the effective date of termination of the Agreement.
General
1. This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
2. Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
3. This DPA shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA.

The parties agree that this DPA is incorporated into and governed by the terms of the Agreement.

Exhibit A

Overview of data processing activities to be performed by the Processor

1. Controller

The Controller transfers Personal Data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.

The Controller is the Customer.

2. Processor

The Processor receives data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.

The Processor is the Company.

3. Data Subjects

The Personal Data transferred includes but is not limited to the following categories of Data Subjects:

Employees and contractors of the Controller and other users added by the Controller from time to time.
Customers of the Controller.
Suppliers to the Controller.
Other individuals to the extent identifiable in the content of emails or their attachments.

4. Categories of Data

The Personal Data transferred includes but is not limited to the following categories of data:

Personal details, names, passwords, email addresses of users.
Personal Data within emails which identifies or may reasonably be used to identify, data subjects.
Meta data including sent, to, from, date, time, subject, which may include Personal Data.
File attachments that may contain Personal Data.
Data sent by users of their own accord in free text fields or in files uploaded to the Service, which may include Personal Data.
Information offered by users as part of support enquiries.
Other data added by the Controller from time to time.
Technical operational data including IP addresses, logins, search queries, which may include Personal Data.

5. Special categories of Data

No sensitive data or special categories of data are permitted to be transferred and shall not be contained in the content of or attachments to, emails.

6. Processing operations

The Personal Data transferred will be subject to the following basic processing activities:

Personal Data will be processed to the extent necessary to provide the Services in accordance with both the Agreement and the Controller’s instructions. The Processor processes Personal Data only on behalf of the Controller.
Processing operations include but are not limited to: automatically explaining bank transactions in Freeagent, automatically uploading receipt emails to FreeAgent, sending general information about the Service to the Controller. These operations relate to all aspects of Personal Data processed.
Technical support, issue diagnosis and error correction to ensure the efficient and proper running of the systems and to identify, analyse and resolve technical issues both generally in the provision of the Services and specifically in answer to a Controller query. This operation may relate to all aspects of Personal Data processed but will be limited to metadata where possible.
Virus, anti-spam and Malware checking in accordance with the Services provided. This operation relates to all aspects of Personal Data processed.

Exhibit B

Technical and Organisational Security Measures (“TOMs”)

The Processor utilises third party data centres that maintain current ISO 27001 certifications. The Processor will not utilise third party data centres that do not maintain ISO 27001 certifications, or other substantially similar or equivalent certifications and/or attestations.

Upon the Controller’s written request (no more than once in any 12 month period), the Processor shall provide within a reasonable time, a copy of the most recently completed certification and/or attestation reports (to the extent that to do so does not prejudice the overall security of the Services). Any audit report submitted to the Controller shall be treated as Confidential Information and subject to the confidentiality provisions of the Agreement between the parties.

The following descriptions provide an overview of the technical and organisational security measures implemented. It should be noted however that, in some circumstances, in order to protect the integrity of the security measures and in the context of data security, detailed descriptions may not be available. It is acknowledged and agreed that the technical and organisational measures described therein will be updated and amended from time to time, at the sole discretion of the Processor.

Confidentiality

TOMs to ensure the confidentiality of the Personal Data processed by the Service.

Data is encrypted in transit: data transmitted between the user's browser and the Service is always encrypted over HTTPS using TLS protocols with minimum 128-bit keys and using SHA256 certificates. The Processor uses modern, strong ciphers for encryption. Known-weak ciphers are explicitly disabled with regular protocol reviews. Data sent to third parties is always sent over encrypted connections. This mitigates the risk of deliberate data interception or accidental data leakage, for example man-in-the-middle attacks.
Data is encrypted at rest: data at rest, for example in backups or on the Processor's computers, is always encrypted using AES encryption with minimum 256-bit keys. This mitigates the risk of data falling into unauthorised hands, for example due to network exfiltration or stolen devices.
Data retention policies: the Processor maintains policies to ensure the minimal amount of Personal Data is retained and that Personal Data is not retained any longer than necessary. This mitigates the risk of accidental or deliberate disclosure of Personal Data.
The principle of least privilege access is embedded at all levels in the Processor, from staff down to operating system server processes. This ensures that only the data that is authorised to be processed may be accessed. This mitigates the risk of accidental or deliberate disclosure of Personal Data.
The data centres used by the Processor implement multiple physical access controls to prevent unauthorised people from physically accessing data processing equipment which processes or uses Personal Data.
The Processor only authorises specific staff to access the Service's production systems. This mitigates the risk of accidental or deliberate disclosure of Personal Data.
The Controller's Personal Data is kept logically separate from other Personal Data. This mitigates the risk of accidental disclosure of Personal Data.

Integrity

TOMs to ensure the integrity of the Personal Data processed by the Service.

All access of Personal Data, including use of the Service by the Controller, is logged and an audit trail of changes is maintained. The Controller may view the audit trail within the Service to help ensure Personal Data is accurate and up to date. This mitigates the risk of Personal Data being altered or deleted either accidentally or deliberately and supports the data subjects' right to rectification.
The Controller may view, update, and delete all their Personal Data held in the Service. This mitigates the risk of Personal Data becoming inaccurate or out of date and supports data subjects' right to rectification.
The principle of least privilege access is embedded at all levels in the Processor, from staff down to operating system server processes. This ensures that only the data that is authorised to be processed may be accessed. This mitigates the risk of accidental or deliberate alteration or destruction of Personal Data.
The Processor only authorises specific staff to access the Service's production systems. This mitigates the risk of accidental or deliberate alteration or destruction of Personal Data.
The Processor maintains separate development and production systems utilising different security tokens, passwords, and privileges. This mitigates the risk of accidental or deliberate alteration or destruction of Personal Data.

Availability

TOMs to ensure the availability of the Personal Data processed by the Service.

The availability of the Service is monitored continually. Automatic notifications are sent to the Processor in the event of the Service becoming unavailable so that the Processor may act to restore availability in a timely fashion.
The Processor only authorises specific staff to access the Service's production systems. This mitigates the risk of accidental or deliberate interference with the Service which could affect availability.
If Personal Data is no longer required for the purposes for which it was processed, it is deleted promptly. It should be noted that with each deletion, the Personal Data is only locked in the first instance and is then deleted for good with a certain delay. This is done in order to prevent accidental deletions or possible intentional damage.
Further TOMs including but not limited to those ensuring resilience.

Resilience

TOMs to ensure the resilience of the Personal Data processed by the Service.

Data is backed up offsite every no less than every 15 minutes as per the data retention policy. This mitigates the risk of data loss, destruction or damage.
Data centres used by the Processor utilise multiple redundant network connections to major internet exchanges. This provides resilience in the face of adverse network conditions.
Data centres used by the Processor utilise redundant UPS power supplies supported by diesel generators for standby power. This mitigates the risk of power outages and provides resilience in the face of electrical supply problems.
Data centres used by the Processor utilise redundant N+2 air cooling systems to mitigate the risk of overheating computing and network equipment.
Data centres used by the Processor utilise modern fire systems for prevention, detection and response with direct connections to the local fire service.
Data centres used by the Processor provide automatic protection against distributed denial of service (DDoS) attacks. This provides resilience in the face of network attacks whether directed against the Service or others on the network.
DNS services used by the Processor are built on distributed, redundant architectures. This provides resilience in the face of adverse network conditions.

Timely restoration of access to Personal Data

TOMs to ensure the timely restoration of access to the Personal Data processed by the Service.

The Processor uses modern devops practices, including but not limited to infrastructure-as-code, to enable new servers to be commissioned as necessary in a timely fashion. This mitigates the risk of loss of access to Personal Data in the face of problems with existing servers, including but not limited to web servers, application servers, and database servers.
The Processor's backup and restoration processes enable the timely restoration of Personal Data from backups as per the data retention policy. This mitigates the risk of loss of access to Personal Data caused by problems with the database.

General Technical measures

The Processor implements general technical measures, including but not limited to the following, to support the confidentiality, integrity, availability, and resilience of Personal Data.

Physical security

Office premises protected by locks and alarms.
All paper shredded after use.
Old computer equipment securely formatted before disposal.

Device security

All computers and devices use full disk encryption.
All backup media use full disk encryption.
All computers and devices regularly updated and security-patched.
All passwords generated by and stored in an industry-leading password manager.

Network security

All networks protected by firewalls.
All Personal Data that is transmitted, either to the Service or to a third party, is sent over encrypted networks.
Access to Personal Data over public wifi is prohibited unless a VPN is used.

System security

All passwords and authentication keys rotated regularly.
All servers regularly updated and security-patched.
All user passwords hashed with a one-way cryptographic hashing function with salt before storage.

Website security

All web traffic protected by HTTPS / TLS and appropriate security headers.
Web server ciphers regularly reviewed and known weak ciphers disallowed.

Data centre security

Manned 24hr/day all year.
Entry controlled via electronic access control terminals.
Continual high definition video surveillance.
All personnel movements recorded and documented.

Data security

3 copies of all data with backups on 2 different media.
Backups stored off-site.
Data deleted when no longer needed.

Software development

All developers are familiar with the OWASP Top Ten web application security risks.
All software must pass automated tests before deployment.
Data privacy is always a fundamental requirement for the Service's software.

General Organisational measures

Staff with access to Personal Data only process that data when instructed to do so and only within the scope of the instructions.
Staff are trained on:
- responsibilities as a Controller and Processor under GDPR;
- staff responsibilities for Protecting Personal data, including the collection, processing and use of Personal Data only within the framework and for the purposes of their duties (e.g. Service provision);
- proper procedures to identify callers;
- proper procedures to identify social engineering and phishing attacks;
- security policies.
Personal Data is only accessed as needed and only when approved by the Controller (e.g. for support), or by technical staff for necessary support and maintenance of the Service.
Staff confidentiality agreements.
Only designated staff can access production systems.
Personal Data used for internal purposes only e.g. as part of the respective customer relationship, may be transferred to a third party such as a subcontractor, solely under consideration of contractual arrangements and appropriate data protection regulatory requirements.
The transfer of Personal Data to a third party (e.g. customers, sub-contractors, service providers) is only made if a corresponding contract exists, and only for the specific purposes. If Personal Data is transferred to companies located outside the EEA, the Processor provides that an adequate level of data protection exists at the target location or organisation in accordance with the European Union's data protection requirements, e.g. by employing contracts based on the Standard Contractual Clauses.