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

1. Definitions

Affiliatesmeans 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;
Agreementmeans the agreement between the Company and the Customer for the provision of the Services;
Controllermeans the Customer;
Data Protection Lawmeans all laws and regulations, including laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom any amendments, replacements or renewals thereof, applicable to the processing of Personal Data, including where applicable, the Data Protection Act 2018, the GDPR and any applicable national implementing laws, regulations and secondary legislation 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);
Data Subjectshall have the same meaning as in Data Protection Law;
DPAmeans this data processing agreement together with Exhibits A, B and C;
GDPRmeans Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016;
Notifiable Personal Data Breachmeans 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 which is likely to result in a risk to the rights and freedoms of natural persons;
Personal Datashall have the same meaning as in Data Protection Law.
Processormeans the Company;
Security Policymeans the Company’s security document as updated from time to time and is available on request.
Standard Contractual Clausesmeans the EU model clauses for personal data transfer from controllers to processors c2010-593 - Decision 2010/87 EU, set out in Exhibit C of this DPA, as replaced or amended from time to time by the EU Commission;
Sub-Processormeans any person or entity engaged by the Company or an Affiliate to process Personal Data in the provision of the Services to the Customer

2. Purpose

2.1 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.

3. Scope

3.1 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, as may be updated from time to time.


3.2 The Controller and Processor shall take steps to ensure that any natural person acting under the authority of the Controller or the Processor who has access to Personal Data does not process them except on the instructions from the Controller unless he or she is required to do so by any Data Protection Law.

4. Processor Obligations

4.1 The Processor may collect, process or use Personal Data only within the scope of this DPA.


4.2 The Processor confirms that it shall process Personal Data on behalf of the Controller in accordance with the documented instructions of the Controller.


4.3 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.


4.4 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.


4.5 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.
4.6 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 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.


4.7 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.


4.8 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.


4.9 Where Personal Data relating to an EU or UK 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: (i) takes place in a third country or territory recognised by the EU Commission to have an adequate level of protection; or (ii) is by an organisation located in a country which has other legally recognised appropriate safeguards in place.


4.10 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.

5. Controller Obligations

5.1 The Controller represents and warrants that it shall comply with this DPA and its obligations under Data Protection Law.


5.2 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.


5.3 The Controller is responsible for compliance with Data Protection Law, including requirements with regards to the transfer of Personal Data under this DPA and the Agreement.


5.4 All Affiliates of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.


5.5 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 encryption of Personal Data; (ii) the ability to ensure the ongoing 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.


5.6 The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. The Controller acknowledges and agrees that 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.


5.7 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.

6. Sub-Processors

6.1 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.


6.2 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.


6.3 The Controller authorises the Processor to use the Sub-Processors already engaged by the Processor as at the date of the Agreement and 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.


6.4 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, and that objection is not unreasonable, the Controller may terminate the Agreement with respect to those 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.


6.5 All Sub-Processors who process Personal Data shall comply with the obligations of the Processor set out in this DPA. The Processor shall prior to the relevant Sub-Processor carrying out any processing activities in respect of the Personal Data: (i) appoint each Sub-Processor under a written contract containing materially the same obligations to those of the Processor in this DPA enforceable by the Processor; and (ii) ensure each such Sub-Processor complies with all such obligations.


6.6 The Controller agrees that the Sub-Processors may transfer Personal Data for the purpose of providing the Solution and Services to the Controller in accordance with the Agreement to countries outside the European Economic Area (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.

7. Audit

7.1 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. Further information about the audit process is available on request.


7.2 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. The Controller shall provide the Processor with a copy of the audit report within 14 days of the audit being completed.


7.3 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.

8. Notification of Notifiable Personal Data Breach

8.1 The Processor shall notify the Controller without undue delay after becoming aware of any Notifiable Personal Data Breach.


8.2 The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Notifiable Personal Data Breach, and to assist the Controller in meeting the Controller’s obligations under applicable law.

9. Compliance, Cooperation and Response

9.1 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.


9.2 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.


9.3 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.


9.4 The Processor shall reasonably assist the Controller in meeting the Controller’s obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of processing and the information available to the Processor.


9.5 The Controller shall 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.


9.6 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 and Data Protection Law.

10. Liability

10.1 The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.


10.2 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.


10.3 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.


10.4 The Controller shall not be entitled to recover more than once in respect of the same loss.

11. Term and Termination

11.1 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.


11.2 The Processor shall at the choice of the Controller, delete or return Personal Data to the Controller. If the Controller wishes to have Personal Data returned, they must themselves export the Personal Data from within the App prior to cancelling their subscription. 30 days after the termination of the subscription all Personal Data within the App will be automatically and permanently deleted by the Company unless applicable law or regulations require storage of the Personal Data.

12. General

12.1 This DPA sets out the entire understanding of the parties with regards to the subject matter herein.


12.2 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.


12.3 Subject to any provision of the Standard Contractual Clauses to the contrary, 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.


12.4 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.

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 Creanova Limited of Suite 8 Sabrina House, Sabrina Court, Longden Coleham, Shrewsbury, Shropshire, SY3 7BF, England.

3. Data Subjects

The Personal Data transferred concern the following categories of Data Subjects:

4. Categories of Data

The Personal Data transferred concern the following categories of data:

5. Special Categories of Data

Personal Data transferred concern the following special categories of data:

No sensitive data or special categories of data are intended to be transferred, but may be contained in the content of or attachments to emails. The Services do not require the acquisition, storage and processing of sensitive data for the purpose of report production. Therefore, if this data is entered, then it would be deemed a breach of these terms and the Data Processor would not accept any resultant liability.

6. Processing operations

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


Exhibit B

Technical and Organisational Security Measures

The Processor utilises third party data centres to host the Genovo application and they maintain current ISO 27001 certifications and/or SSAE 16 SOC 1 Type II or SOC 2 Attestation Reports. The Processor will not utilise third party data centres that do not maintain the aforementioned certifications and/or attestations, 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, however additional information regarding technical and organisational measures may be found in the Security Policy. It’s acknowledged and agreed that the Security Policy and the technical and organisational measures described therein will be updated and amended from time to time, at the sole discretion of the Processor. Notwithstanding the foregoing, the technical and organisational measures will not fall short of those measures described in the Security Policy in any material, detrimental way.

1. Entrance Control

The Processor’s EU based cloud provider conforms to ISO 27001 certifications and/or SSAE 16 SOC 1 Type II or SOC 2 to ensure secure entrance control.

All offices are locked when unsupervised to prevent unauthorised access to Personal Data.

2. System Access Control

The Processor’s EU based cloud provider conforms to ISO 27001 certifications and/or SSAE 16 SOC 1 Type II or SOC 2 to ensure secure system access control.

Following industry best practice the Processor utilises a centralised, role based authentication and access system which provides access to all key customer processing systems. This means that passwords are very strong and non-authorised staff do not have knowledge of them. When a staff member leaves, they are simply removed from this system which removes their access from all systems that they were approved to access.

As per best practice all PCs are locked when unattended.

3. Data Access Control

Role based authorisation is extensively used throughout the organisation, and other applications used for processing Customer Data to implement “need-to-know” principles.

The Processor’s database is encrypted “at rest” and in addition implements column level encryption on Personal data.

4. Transmission Control

All Genovo application transmissions are encrypted.

The Genovo application is hosted within the EEA.

5. Data Entry Control

Technical and organisational measures regarding recording and monitoring of the circumstances of data entry to enable retroactive review.

System inputs are recorded in the form of log files therefore it is possible to review retroactively whether and by whom Personal Data was entered, altered or deleted.

6. Data Processing Control

Technical and organisational measures to differentiate between the competences of principal and contractor:

The aim of the data processing control is to provide that Personal Data is processed by a commissioned data processor in accordance with the Instructions of the principal.

Details regarding data processing control are set forth in the Agreement and the DPA.

7. Availability Control

The Genovo database is saved in triplicate to ensure availability. In addition the database is backed up at least every 4 hours and can be restored to at least any 4 hour point in the last 14 day period, using a mechanism of full, differential and database log backups.

8. Separation Control

Technical and organisational measures regarding purposes of collection and separated processing:

Personal Data is 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.

Employees are instructed to collect, process and use Personal Data only within the framework and for the purposes of their duties (e.g. service provision). At a technical level, multi-client capability includes separation of functions as well as appropriate separation of testing and production systems.

Customer Data is stored in a way that logically separates it from other customer’s data. Genovo contains security mechanisms to ensure that users only have access to data that they are authorised to access.

Exhibit C

Commission Decision C(2010)593
Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

the Controller, (the data “exporter”)

and

the Processor, (the data “importer”)

each a “party”; together “the parties”,

HAVE AGREED on the following Standard Contractual Clauses (the “Standard Contractual Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Exhibit A of the DPA.

Clause 1

Definitions

For the purposes of the Standard Contractual Clauses all terms used in capitals shall have the meaning given to them in the DPA unless defined otherwise below:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;


(b) ‘the data exporter’ means the controller who transfers the personal data;


(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Standard Contractual Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;


(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Standard Contractual Clauses and the terms of the written subcontract;


(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;


(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Exhibit A of the DPA which forms an integral part of the Standard Contractual Clauses.

Clause 3

Third-party beneficiary clause

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Standard Contractual Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in the Security Policy;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Standard Contractual Clauses, with the exception of the Security Policy, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Standard Contractual Clauses, unless the Standard Contractual Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Standard Contractual Clauses; and (j)         that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

Clause 6

Liability

Clause 7

Mediation and jurisdiction

Clause 8

Cooperation with supervisory authorities

Clause 9

Governing Law

The Standard Contractual Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Standard Contractual Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Standard Contractual Clauses.

Clause 11

Subprocessing

Clause 12

Obligation after the termination of personal data processing services

Clause 13

Miscellaneous

These Standard Contractual Clauses take priority over any other agreement between the parties, whether entered into before or after the date these Standard Contractual Clauses are entered into.