DATA PROCESSING AGREEMENT

BETWEEN:

1. The company or organisation defined in the Provider’s booking confirmation form which sets out the terms of the service to be provided between the parties (the “Customer”); and
2. Noonah Marketing Limited incorporated and registered in England and Wales with company number 07619471 whose registered office is at Underwood Cottage Bar Road, Baslow, Bakewell, Derbyshire, United Kingdom, DE45 1SF (the “Provider”).

WHEREAS

1. The Customer and the Provider entered into a contract for the provision of services and/or products from the Provider (the “Master Agreement”) which may require the Provider to process Personal Data on behalf of the Customer.
2. This Personal Data Processing Agreement (“Agreement”) sets out the additional terms, requirements and conditions on which the Provider will process Personal Data when providing services under the Master Agreement. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contract between Controllers and Processors.
3. In the Provider’s documentation, both “Customer” and “Hirer” are used interchangeably to mean “Customer” and both “Provider” and “Noonah” are used interchangeably to mean “Provider”.  In this Agreement Customer shall mean both Customer and Hirer and Provider shall mean both Provider and Noonah.

IT IS AGREED as follows:

1. Definitions and interpretation 

The following definitions and rules of interpretation apply to this Agreement.

1.1   Definitions:

Authorised Persons. The persons or categories of persons that the Customer authorises in writing to give the Provider personal data processing instructions.

Business Purposes. The services and products described in the Master Agreement or any other purpose specifically agreed in writing with the Customer.

Controller and Processor. As defined in the Data Protection Legislation.

Data Subject. An individual who is the subject of Personal Data which includes the Customer, employees of the Customer and any member of the public who uses the services provided to the Customer under the Master Agreement.

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

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 an 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, adaption 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.  The UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

UK Data Protection Legislation.  All applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018; the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

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. 

1.2 This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this Agreement.

1.3 A reference to writing or written includes faxes and email.

1.4 In the case of conflict or ambiguity between any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail.

2. Personal data types and processing purposes

2.1 The Customer and the Provider acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Provider is the Processor.

2.2 The Customer 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 Provider.  In the event the Customer has an end client to whom the services and/or products are being provided, the Customer shall remain the Controller between the Customer and the Provider, where it transfers Personal Data to the Provider.  Where the Customer is not the direct recipient of the Provider’s services and/or products, it warrants that its end client has provided written consent to the processing of its Personal Data by the Provider for the Business Purpose in the manner described in the Master Agreement.

2.3 The Provider will only process personal data to the extent that it is required to in order to comply with its obligations, and achieve the Business Purposes, as set out in the Master Agreement.

2.4 In order to fulfil the Business Purposes, the Provider maybe required to process the following categories of Personal Data. Identity data including but not limited to first name, last name, username, title, date of birth, gender, videos, images, artwork and photographs. Contact data, including but not limited to email address and telephone numbers. Profile data including usernames and use of social media sites. Additional Information as directed by the Customer under the Master Agreement and/or in writing.

2.5 The Provider will only retain Personal Data for as long as reasonably necessary to fulfil the Business Purposes which shall be a maximum of 12 months following provision of the services under the Master Agreement. It is the responsibility of the Customer to communicate its data retention policy or that of its end client  to the Provider, for the Provider’s review.  Where it is able to comply with such data retention policy, the Provider will provide its acceptance of the same in writing.

3. Provider’s obligations

3.1 The Provider will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s written instructions from Authorised Persons. The Provider will not process the Personal Data for any other purposes or in a way that does not comply with this Agreement or the Data Protection Legislation. The Provider must promptly notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Data Protection Legislation.

3.2 The Provider must promptly comply with any Customer request or instruction from Authorised Persons requiring the Provider to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3 The Provider will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Customer or this Agreement specifically authorises the disclosure, save where Personal Data is processed or transferred by subprocessors who are performing services in accordance with the Master Agreement. If a law, court, regulator or supervisory authority requires the Provider to process or disclose Personal Data, where possible, the Provider will inform the Customer of the legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice. 

3.4 The Provider will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of the Provider’s processing and the information available to the Provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation, such assistance will be at the cost of the Customer. 

3.5 If the Provider becomes aware of any changes to Data Protection Legislation that may adversely affect the Provider’s performance of the Master Agreement, it will notify the Customer of such changes. 

4. Provider’s employees

4.1 The Provider will ensure that all employees:

4.1.1 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;

4.1.2 have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and

4.1.3re aware both of the Provider’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.

4.2 The Provider will take reasonable steps to ensure the reliability, integrity and trustworthiness of all of the Provider’s employees with access to the Personal Data.

5. Security

5.1 The Provider must 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.

5.2 The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

5.2.1 the pseudonymisation and encryption of personal data;

5.2.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

5.2.3 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 

5.2.4 a process for regularly testing, assessing and evaluating the effectiveness of security measures.

6. Personal Data Breach

6.1 The Provider will promptly and without undue delay notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. 

6.2 The Provider will within 24 hours notify the Customer if it becomes aware of:

6.2.1 any accidental, unauthorised or unlawful processing of the Personal Data; or

6.2.2 any personal Data Breach.

6.3 Where the Provider becomes aware of the above, it shall, without undue delay, also provide the Customer with the following information:

6.3.1 description of the nature of the breach, including the categories and approximate number of both Data Subjects and Personal Data records concerned;

6.3.2 the likely consequences; and

6.3.3 description of the measures taken, or proposed to be taken to address the breach, including measure to mitigate its possible adverse effects.

6.4 Following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. The Provider will reasonably cooperate with the Customer in the Customer’s handling of the matter, including:

6.4.1 assisting with any investigation;

6.4.2 providing the Customer with physical access to any facilities and operations affected;

6.4.3 facilitating interviews with the Provider’s employees, and (where possible) former employees and others involved in the matter;

6.4.4 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 Customer; and

6.4.5 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.

The Provider reserves the right to charge the Customer an administration fee for its involvement in such investigation.

6.5 The Provider will not inform any third party of any Personal Data Breach (save for any subprocessors involved in fulfilling the Business Purpose) without first obtaining the Customer’s prior written consent, except when required to do so by law.

7. Cross-border transfers of personal data

7.1 The Provider (or any subprocessor) may transfer or otherwise process Personal Data outside the European Economic Area (“EEA”) provided that: 

7.1.1 the Provider or its sub-processor is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals; or

7.1.2 the Provider participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Provider 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 UK GDPR.

8. Subcontractors

By signing the Master Agreement, the Customer acknowledges that the Provider may use a subprocessor as required to process the Personal Data in line with the Business Purposes if the Provider enters into a written contract with the subprocessor that contains terms substantially the same as those set out in this Agreement.

9. Complaints, data subject requests and third party rights

9.1 The Provider must take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, at the cost of the Customer, to enable the Customer to comply with:

9.1.1 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

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

9.2 The Provider must notify the Customer 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 The Provider must notify the Customer within 5 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 The Provider will give the Customer its full cooperation and assistance, at the cost of the Customer, in responding to any complaint, notice, communication or Data Subject request.

9.5 The Provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer’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:

10.1.1 the Master Agreement remains in effect; or

10.1.2 the Provider retains any Personal Data related to the Master Agreement in its possession of control (“Term”).

10.2 Any provisions of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Master Agreement 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 Master 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, they may terminate the Master Agreement on written notice to the other party.

11. Data return and destruction

11.1 At the Customer’s request, the Provider will give the Customer a copy of or access to all or part of the Customer’s Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.

11.2 On termination of the Master Agreement for any reason or expiry of its term or once the data retention period has come to an end (where such data retention policy was accepted by the Provider in writing), the Provider will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any Personal Data related to this Agreement in its possession or control.

11.3 If any law, regulation, or government or regulatory body requires the Provider to retain any documents or materials that the Provider would otherwise be required to return or destroy, it will notify the Customer 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.

11.4 The Provider will certify in writing that it has destroyed the Personal Data within 7 days after it completes the destruction.

12. Records

12.1 The Provider will keep written records regarding the processing of Personal Data it carries out for the Customer(“Records”).

12.2 The Provider will ensure that the Records are sufficient to enable the Customer to verify the Provider’s compliance with its obligations under this Agreement and the Provider will provide the Customer with copies of the Records upon request.

13. Audit

13.1 The Provider will permit the Customer to audit the Provider’s compliance with its Agreement obligations, not more than once in any 12 month period, on at least 30 days’ notice. The Provider will give the Customer such assistance as is necessary to conduct the audits, at the cost of the Customer. The assistance includes:

13.1.1 remote electronic access to, and copies of the Records and any other information held at the Provider’s premises or on systems storing Personal Data;

13.1.2 inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to store, process or transport Personal Data, which relate directly to the Customer.

13.2 If a Personal Data Breach occurs or is occurring, or the Provider becomes aware of a breach of any of its obligations under this Agreement or any Data Protection Legislation, the Provider will:

13.2.1 promptly conduct its own audit to determine the cause; and

13.2.4 remedy any deficiencies identified by the audit as soon as reasonably practicable.

14. Warranties

14.1 The Provider warrants, so far as it is aware, that:

14.1.1 it will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;

14.1.2 it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Master Agreement’s contracted services; and

14.1.3 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 unauthorised 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 Customer warrants that the Provider’s expected use of the Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation.

15. Notice

15.1 Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to:

For the Customer: Richard Newall.

For the Provider: the Provider contact details as stated in the Master Agreement.

15.2 Clause 15.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.3 A notice given under this agreement is not valid if sent by email.