Data Processing Agreement

1. Introduction

This Data Processing Agreement (Agreement) sets out the additional terms, requirements and conditions on which the Data Processor Purple Square will process Personal data on behalf of the Data Controllers. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) and the UK Data Protection Act 2018 (the Data Protection legislation) for binding written agreements between data controllers and data processors.

2. Definitions

2.1 Data Subject: an individual who is the subject of personal data.

2.2 Personal Data: Means any information relating to an identified or identifiable natural person that is processed by the Processor as a result of, or in connection with, the provision of the services under the services agreement. 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.

2.3 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.

2.4 Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications regulations, as amended, replaced or updated from time to time.

2.5 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.

2.6 Purple Square: For the purpose of this agreement the name “Purple Square” denotes Purple Square Consulting Ltd (Registered in England and Wales, No. 7586167) and its wholly owned subsidiaries Purple Square Consulting (Australia) PTY Ltd (Registered in Australia, ABN 92 615 217 411) and Purple Square Consulting (Malta) Ltd (Registered in Malta, No. C86755)

3. Personal Data Types and Processing Purposes

3.1 The Controller and the Processor acknowledge that for the purpose of the Data Protection Legislation, you the customer is the controller and we, Purple Square is the processor.

3.2 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 the Processor.

4. Processor Obligations

4.1 We will only process the personal data to the extent, and in such a manner, as is necessary for the business purposes. We 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.

4.2 We will promptly comply with any Controller request or instruction requiring the us to amend, transfer, delete or otherwise process the personal data, or to stop, mitigate or remedy any unauthorised processing.

4.3 We 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 us to process or disclose personal data, will 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.

4.4 Taking into account the nature of the processing, we 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 us, including in relation to data subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

5. Processor’s Employees

5.1 Purple Square will ensure that all of its employees:

1. • are informed of the confidential nature of the personal data and are bound by confidentiality obligations and use restrictions in respect of it;
2. • have undertaken training on the data protection legislation relating to handling personal data and how it applies to their particular duties; and
3. • are aware both of our duties and their personal duties and obligations under the data protection legislation and this agreement.
4. • will take reasonable steps to ensure the reliability, integrity and trustworthiness of all of our employees with access to the Personal data.

6. Security

6.1 We will, at all times implement appropriate technical and organisational measures 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 including, but not limited to, physical access controls, system access controls, data access controls, transmission controls, authentication, data backups and data segregation.

6.2 We will also implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

1. • the pseudonymisation and encryption of personal data;
2. • the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
3. • 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
4. • a process for regularly testing, assessing and evaluating the effectiveness of security measures.

7. Personal Data Breach

7.1 Purple Square will promptly and without undue delay notify the Controller if any personal data is lost or destroyed or becomes damaged, corrupted, or unusable. We will restore such personal data at our own expense.

7.2 We will immediately notify the Controller if it becomes aware of:

1. • any accidental, unauthorised or unlawful processing of the personal data; or
2. • any personal data breach.
3. • where we become aware of (a) and/or (b) above, we shall, without undue delay, also provide the Controller with the following information:
   1. o description of the nature of (a) and/or (b), including the categories and approximate number of both data subjects and personal data records concerned;
   2. o the likely consequences; and
   3. o description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.

7.3 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. We will reasonably co-operate with the Controller in the Controller’s handling of the matter, including:

1. • assisting with any investigation;
2. • providing the Controller with physical access to any facilities and operations affected;
3. • facilitating interviews with our employees, former employees and others involved in the matter;
4. • 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
5. • 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.

7.4 Purple Square 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.

7.5 We agree that the Controller has the sole right to determine:

1. • 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
2. • whether to offer any type of remedy to affected data subjects, including the nature and extent of such remedy.
3. • We will cover all reasonable expenses associated with the performance of the obligations under clause 7.1 and clause 7.3 unless the matter arose from the Controller’s specific instructions, negligence, wilful default or breach of this Agreement, in which case the Controller will cover all reasonable expenses.
4. • We will also reimburse the Controller for actual reasonable expenses that the Controller incurs when responding to a Personal data Breach to the extent that we caused such a Personal data Breach.

8. Cross Border Transfers of Personal data

8.1 Purple Square (or any subcontractor) will not transfer or otherwise process personal data outside the European Economic Area (EEA) without obtaining the Controller’s prior written consent.

8.2 Where such consent is granted, we may only process, or permit the processing, of Personal data outside the EEA under the following conditions:

1. • Purple Square is processing Personal data in a territory which is subject to a current finding by the European Data Protection Board that the territory provides adequate protection for the privacy rights of individuals.
2. • We participate in a valid cross-border transfer mechanism under the Data Protection Legislation, so that we (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).

9. Subcontractors

9.1 Purple Square may only authorise a third party (subcontractor) to process the personal data if:

1. • the Controller provides prior written consent prior to the appointment of each subcontractor; and
2. • we enter 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
3. • we maintain control over all personal data it entrusts to the subcontractor; and
4. • the subcontractor’s contract terminates automatically on termination of this Agreement for any reason.

9.2 Where the subcontractor fails to fulfil its obligations under such written agreement, Purple Square remains fully liable to the Controller for the subcontractor’s performance of its agreement obligations.

9.4 The Parties consider that we control any Personal data controlled by or in the possession of its subcontractors.

9.5 On the Controller’s written request, Purple Square will audit a subcontractor’s compliance with its obligations regarding the Controller’s Personal data and provide the Controller with the audit results.

10. Complaints, Data Subject Requests and Third Party Rights

10.1 Purple Square will, 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:

10.2 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

10.3 information or assessment notices served on the Controller by any supervisory authority under the Data Protection Legislation.

10.4 We 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.

10.5 We will notify the Controller without undue delay 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.

10.6 We will give the Controller its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

10.7 We 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.

11. Term and Termination

11.1 This Agreement will remain in full force and effect so long as:

1. • the Services Agreement remains in effect, or
2. • Purple Square retains any personal data related to the Services Agreement in its possession or control (Term).

11.2 Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Services Agreement in order to protect personal data will remain in full force and effect.

11.3 Our failure to comply with the terms of this Agreement is a material breach of the Services Agreement. In such event, the Controller may terminate the Services Agreement effective immediately on written notice to the us without further liability or obligation.

11.4 If a change in any Data Protection legislation prevents either party from fulfilling all or part of its Services 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 Services Agreement on written notice to the other party.

12. Data Return and Data Destruction

12.1 At the Controller’s request, we 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.

12.2 On termination of the Services Agreement for any reason or expiry of its term, we 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. We will enquire of the Controller whether the Controller wants the personal data to be deleted, destroyed, returned or retained.

12.3 If any law, regulation, or government or regulatory body requires us to retain any documents or materials that we would otherwise be required to return or destroy, we 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.

12.4 We will certify in writing that it has destroyed the personal data within 3 days after it completes the destruction.

13. Records

13.1 Purple Square 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 6.1 and 6.2 (Security).

13.2 We will ensure that the Records are sufficient to enable the Controller to verify our compliance with its obligations under this Agreement and the we will provide the Controller with copies of the Records upon request.

14. Audit

14.1 We will permit the Controller and its third-party representatives to audit our compliance with its Agreement obligations. We will give the Controller and its third-party representatives all necessary assistance to conduct such audits. The assistance may include, but is not limited to:

14.2 physical access to, remote electronic access to, and copies of the Records and any other information held at the our premises or on systems storing Personal data;

14.3 access to and meetings with any of the our personnel reasonably necessary to provide all explanations and perform the audit effectively; and

14.4 inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to store, process or transport Personal data.

14.5 The notice requirements in clause 14.1 will not apply if the Controller reasonably believes that a personal data breach occurred or is occurring, or the Purple Square is in breach of any of its obligations under this Agreement or any Data Protection legislation.

14.6 If a Personal data Breach occurs or is occurring, or we become aware of a breach of any of its obligations under this Agreement or any Data Protection Legislation, we will:

1. • promptly conduct its own audit to determine the cause;
2. • produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
3. • provide the Controller with a copy of the written audit report; and
4. • remedy any deficiencies identified by the audit within 7 days.

14.7 At the Controller’s written request, we will:

1. • conduct an information security audit before it first begins processing any personal data and repeat that audit on an annual basis;
2. • produce a written report that includes detailed plans to remedy any security deficiencies identified by the audit;
3. • provide the Controller with a copy of the written audit report; and
4. • remedy any deficiencies identified by the audit within 7 days.

15. Warranties

15.1 Purple Square warrants and represents that:

1. • 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;
2. • 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;
3. • it has no reason to believe that the Data Protection legislation prevents it from providing any of the Services Agreement’s contracted services; and
4. • 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:
   1. o the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage;
   2. o the nature of the personal data protected; and
   3. o comply with all applicable Data Protection legislation and its information and security policies, including the security measures required in clause 6.1 and 6.2 (Security)

15.2 The Controller warrants and represents that Purple Square expected use of the personal data for the Business Purposes and as specifically instructed by the Controller will comply with the Data Protection legislation.