DATA PROCESSING AGREEMENT

EFFECTIVE DATE: 19 February 2019

This DPA is entered into between the Controller and the Processor and is incorporated into and governed by the terms of the Agreement.

  1. DEFINITION

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

    Term Definition
    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 of terms and conditions between the Controller and the Processor for the provision of the Ergofy Platform and Support Services;
    Application Logs means software event log files automatically generated by and stored by the Ergofy Platform including but not limited to the recording of data received and/or processed by the Ergofy Platform, such as web browser requests and associated parameters such as form values and headers
    Controller means the Customer;
    Data Protection Laws means all applicable privacy and data protection laws including 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 Subject shall have the same meaning as in Data Protection Laws;
    DPA means this data processing agreement together with Exhibit A;
    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 Laws;
    Processor means the Supplier;
    Sub-Processor means any person or entity engaged by the Processor or its Affiliate to process Personal Data in the provision of the Ergofy Platform and Support Services to the Controller.

  2. PURPOSE

    1. The Processor has agreed to provide the Ergofy Platform and Support Services to the Controller in accordance with the terms of the Agreement. In providing the Ergofy Platform and Support 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

    1. In providing the Ergofy Platform and Support 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 Ergofy Platform and Support Services in accordance with the terms of the Agreement, this DPA and the Controller's instructions documented in the Agreement and this DPA, as may be updated from time to time.
    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 Laws.

  4. 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 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, breaches any Data Protection Laws.
    4. The Processor shall ensure that all employees, agents, officers and contractors involved in the handling of Personal Data:
      1. are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential;
      2. have received appropriate training on their responsibilities as a data processor; and
      3. 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:
      1. the pseudonymisation and encryption of Personal Data;
      2. the ability to ensure the on-going 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;
      4. 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 Controller acknowledges and agrees that, in the course of providing the Ergofy Platform and Support 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 Ergofy Platform and Support Services. All such access by the Processor will be limited to those purposes.
    8. 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 Data Protection Laws, specifically:
      1. to a third country or territory recognised by the EU Commission to have an adequate level of protection; or
      2. 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.
    9. 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

    1. The Controller represents and warrants that it shall comply with this DPA and its obligations under Data Protection Laws.
    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. All Affiliates of the Controller who use the Ergofy Platform and Support Services shall comply with the obligations of the Controller set out in this DPA.
    4. The Controller is responsible for compliance with all Data Protection Laws, including requirements with regards to the transfer of Personal Data under this DPA and the Agreement.
    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:
      1. the pseudonymisation and encryption of Personal Data;
      2. the ability to ensure the on-going 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;
      4. 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.
    6. 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.
    7. The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data, the Processor assisting with audits, inspections, DPIAs or providing any assistance under this DPA, may result in additional fees. The Processor shall be entitled to charge the Controller for its costs and expenses in providing any such assistance.

  6. SUB-PROCESSORS

    1. The Controller acknowledges and agrees that:
      1. Affiliates of the Processor may be used as Sub-processors; and
      2. the Processor and its Affiliates respectively may engage Sub-processors in connection with the provision of the Ergofy Platform and Support Services.
    2. All Sub-processors who process Personal Data in the provision of the Ergofy Platform and Support Services to the Controller shall comply with the obligations of the Processor set out in this DPA.
    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 a list of Sub-processors authorised to process the Personal Data 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) before authorising any new or replacement Sub-processor(s) to process Personal Data. The most recent version of the sub-processor list is available here.
    4. The Controller may object to the use of a new or replacement Sub-processor, by notifying the Processor promptly in writing within ten 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 those Ergofy Platform and Support 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 Ergofy Platform and Support Services. 

    5. All Sub-Processors who process Personal Data shall comply with the obligations of the Processor set out in this DPA. The Processor shall:
      1. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Personal Data;
      2. 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
      3. ensure each such Sub-Processor complies with all such obligations.
    6. The Controller agrees that the Sub-Processors may transfer Personal Data for the purpose of providing the Ergofy Platform and Support Services to the Controller in accordance with the Agreement to countries outside the European Economic Area (EEA). The Processor confirms that such Sub-processors:
      1. are located in a third country or territory recognised by the EU Commission to have an adequate level of protection; or
      2. have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.

  7. 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:
      1. at the Controller's expense;
      2. limited in scope to matters specific to the Controller and agreed in advance;
      3. 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
      4. 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.

  8. 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.

  9. 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 the processing and the information available to the Processor.
    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 Ergofy Platform and Support Services which give rise to the non-compliance. To the extent that other parts of the Ergofy Platform and Support Services provided are not affected by such changes, the provision of that part of the Ergofy Platform and Support 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 and Data Protection Laws.

  10. 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 loss.

  11. 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 of the end of the provision of the Ergofy Platform and Support Services, delete and/or return Personal Data to the Controller. The Processor shall in any event delete all copies of Personal Data in its systems within 90 days of the effective date of termination of the Agreement unless:
      1. applicable law or regulations require storage of the Personal Data after termination; or
      2. partial Personal Data of the Customer is stored in archived Application Logs, then such Personal Data shall be deleted from archives 1 year after the effective date of termination of the Agreement.
    3. In lieu of full data deletion in Clause 11.2, the Processor may elect at its own discretion to perform full data anonymisation of Personal Data provided:
      1. full data deletion is not required by Data Protection Law
      2. anonymisation is performed to a level where it is renders all Data Subjects practically unidentifiable
      3. it serves a legitimate business interest for the Processor, such as future internal research and analysis

  12. 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.
    4. 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 received 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 Supplier.

  3. DATA SUBJECTS

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

    • Employees, freelancers and contractors of the Controller.
    • Authorised Users, Affiliates and other participants from time to time to whom the Controller has granted the right to access the Ergofy Platform and Support Services in accordance with the terms of the Agreement.
    • Clients of the Controller and individuals with whom those end users communicate with by email and/or other messaging media.
    • Employees of clients of the Controller.
    • Suppliers and service providers of the Controller.
    • Children who are at least 16 years old.
    • Other individuals to the extent identifiable in the content of emails or their attachments or in archiving content.

  4. CATEGORIES OF DATA

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

    • Personal details, names, usernames, password hashes and email addresses of Authorised Users.
    • Personal Data derived from the Authorised Users' use of the Ergofy Platform and Support Services such as work records including office location, job title and department and other business intelligence information.
    • Personal Data within email and messaging content which identifies or may reasonably be used to identify, data subjects.
    • Meta data of messages including sent, to, from, date, time, subject, delivery and open actions, which may include Personal Data.
    • Well-being data such as pain and/or discomfort experienced when at work or resulting due to work including the presence of diagnosed medical conditions related to pain experienced.
    • Mental stress experienced while at work.
    • Working habits such as hours worked and equipment used.
    • Free-text input answers to questions in assessments posed to Data Subjects.
    • Other data added by the Controller from time to time, such as notes added to Authorised Users' assessments and/or risk issues.

  5. SPECIAL CATEGORIES OF DATA

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

    • the presence of complicating medical conditions as regards workplace well-being and ergonomic comfort, including recent pregnancies.

  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 Ergofy Platform and Support 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: collection of workplace information from and about individuals working with or for the Customer, whether at the Customer's premises or not, management and monitoring of workplace risk-levels for such individuals, use of questionnaires and assessments to monitor and assess individuals' workplace risk, providing suggestions and feedback in relation to risk management, objectives and personal development, making comments and updates on these, providing support to the Customer with regards to managing individuals' risk.
    • 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 Ergofy Platform and Support 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 Ergofy Platform and Support Services provided. This operation relates to all aspects of Personal Data processed.
    • URL scanning for the purposes of the provision of targeted threat protection and similar services which may be provided under the Agreement. This operation relates to attachments and links in emails and will relate to any Personal Data within those attachments or links which could include all categories of Personal Data.