Data Processor Agreement

Data Processor Agreement in place from 31 July 2024 to 14 October 2024

1. DEFINITIONS

   1. Defined terms used in this Data Processor Agreement shall have the meanings given to them in Dext’s General Terms and Conditions (found here) and in addition, the following words shall have the following meanings: means, as appropriate, the UK GDPR or EU GDPR.

      Approved Jurisdiction	as defined at clause 2.7 of this Data Processor Agreement and as supplemented by any territory or territories where Sub Processors are based.
      Data Processing Details	means the information set out at Appendix 1 of this Data Processor Agreement which applies to all Dext Products being procured by You in any Order Confirmation.
      Data Protection Legislation	shall mean the Data Protection Act 2018, the Retained Regulation (EU) 2016/679 (UK GDPR) as incorporated under the European Union (Withdrawal Act) 2018 and as amended by The Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019, and any other laws or regulations applicable in the United Kingdom, and where applicable to Us in the performance of the Agreement to You, the General Data Protection Regulation (Regulation (EU) 2016/679 (EU GDPR)), in each case as amended or repealed from time to time. “personal data”, “data subject”, “controller”, “processor”, “process” and “supervisory authority” shall be interpreted in accordance with the GDPR applicable to the laws of England and Wales. “Your personal data” shall mean the personal data in Your Customer Data that is processed by Us pursuant to the Agreement.
      End Date	as defined at clause 2.15 of this Data Processor Agreement.
      GDPR
      Personal Data Breach	means 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.
      Revised Instruction	a request for information sent by Us to You pertaining to whether Your instruction post the End Date remains to delete Your personal data.
      Sub Processor	shall mean a processor appointed by Us, as described at clause 2.11 of this Data Processor Agreement.
      UK Addendum	means Addendum B.1.0 issued by the UK Information Commissioner's Office in accordance with s119A of the Data Protection Act 2018 set out in Appendix 3 of this Data Processor Agreement as amended from time to time.

   2. The notice provisions at clause 9.10 of Schedule 1 of Dext’s General Terms and Conditions shall not apply to this Data Processor Agreement. Instead, where there is an obligation to notify in this Data Processor Agreement, an email to the primary contact each party has on file for the other will suffice.

2. PROCESSOR CLAUSES

   1. The parties acknowledge that the factual arrangements between them dictate the role of each party in respect of the Data Protection Legislation. Notwithstanding the foregoing, each party acknowledges that the intention is that You will be sharing Your and, to the extent applicable, Your Permitted Users’ personal data with Dext in order for Dext to fulfil its obligations under the Agreement and analyse the Customer Data, including Your personal data.
   2. In the event that We process Your, and, to the extent applicable, Your Permitted Users’ personal data under or in connection with the Agreement, the parties record their intention that We are the processor, and You are the controller of such personal data. The Data Processing Details sets out the subject-matter and duration of the processing of Your personal data, the nature and purpose of the processing, the type of personal data and the categories of data subjects. Subject to clause 2.12 of this Data Processor Agreement, We may amend the Data Processing Details from time to time.
   3. Each party shall comply with its obligations under applicable Data Protection Legislation, and You warrant and undertake that You shall not instruct Us to process Your personal data where such processing would be unlawful.
   4. You acknowledge that We do not want, nor expect any special category of personal data to be uploaded by You or Permitted Users or Authorised Users and You agree not to (and to ensure that Your Permitted Users or Authorised Users as applicable do not) upload the same. Breach of this clause shall constitute a material breach of Your Agreement with US which may allow Us to terminate the Agreement in accordance with its terms including, without limitation, clause 6.1 of Schedule 1 of Dext’s General Terms and Conditions.
   5. You also agree that (i) Dext is not acting on Your or any of Your Permitted User or Authorised User’s behalf as a Business Associate or subcontractor; (ii) the Dext Products may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Dext Products will not be used in any manner that would require Dext or any of the Dext Products to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.
   6. Subject to clause 2.2 above, We will also act as controller in respect of Our use of personal data relating to Your Permitted Users and/or Authorised Users solely in relation to Us performing the Agreement.
   7. Subject to clause 2.9 and 2.10 below, We shall process Your personal data only in accordance with Your documented instructions and shall not transfer Your personal data outside of the European Union or the UK (the “Approved Jurisdiction”) without the documented instruction. For the avoidance of any doubt, any configuration of the Dext Products by You (or Us, acting on Your instruction) or Your use of the Dext Products shall constitute ‘written instructions’ for the purposes of this Data Processor Agreement and in relation to any transfer as a result of such configuration, We shall have put in place appropriate safeguards to protect Your personal data and ensure that the relevant data subjects have enforceable subject access rights and effective legal remedies as required by the Data Protection Legislation including entering into appropriate clauses with You or Our contractors (as appropriate) including Standard Contractual Clauses as such term is defined in the Data Protection Legislation.
   8. Where we process personal data in non – Approved Jurisdictions, We shall comply with the EU Commission’s Standard Contractual Clauses (annexed to EU Commission Decision 2021/914/EU of 4 June 2021) (the “EU SCCs”) which shall be entered into and incorporated into the Agreement by this reference, as amended by the UK Addendum. Nothing in the interpretations in this clause 2.8 is intended to conflict with either Yours or Our rights or responsibilities under the EU SCCs and, in the event of any such conflict, the EU SCCs (as amended by the UK Addendum) shall prevail.
   9. We may process Your personal data other than in accordance with Your documented instructions where required to do so by applicable law provided that (unless prohibited by applicable law on important grounds of public interest) We shall notify You of such legal requirement before such processing.
   10. We shall ensure that individuals engaged in the processing of Your personal data under the Agreement are subject to written obligations of confidentiality.
   11. We shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in processing Your personal data pursuant to the Agreement. We shall assist You by appropriate technical and organisational measures in fulfilling Your obligations as controller in relation to the security of processing Your personal data. Our general security measures are set out in clause 4 to this Data Processor Agreement.
   12. We may engage such other processors (“Sub Processors”) as We consider reasonably appropriate for the processing of Your personal data in accordance with the terms of the Agreement (including but not limited to in connection with support, maintenance and development, staff augmentation and the use of third-party data centres). Any Sub Processors We currently use are accepted by You, and are as described in Appendix 1 of this Data Processor Agreement. By You entering into the Agreement, You are providing Us with general written authorisation to add a Sub Processor and/or replace or remove a Sub Processor where We deem necessary. You may request a list of Our Sub Processors at any time. We shall ensure that all Sub Processors are bound by contract with Us which include appropriate data processing terms and We shall remain liable for Sub Processors’ acts and omissions in connection with the Agreement.
   13. In the event that any data subject exercises its rights under applicable Data Protection Legislation against You, We shall use reasonable commercial efforts to assist You in fulfilling Your obligations as controller and provide You with a suitable response without undue delay (and in any event within 5 days) following written request from You provided that We may: (a) extend such time period (provided always that We shall use all reasonable endeavours to provide such assistance within a time period to enable You to comply with Your obligations under applicable Data Protection Legislation); and/or (b) charge You on a time and materials basis in the event that We consider, in Our reasonable discretion, that such assistance is onerous, complex, frequent or time consuming. We shall promptly notify You in writing in the event that We receive any request, complaint, notice or other communication directly from a third party or data subject which relates directly or indirectly to the processing of Your personal data.
   14. Upon discovering We have experienced a Personal Data Breach in respect of Your personal data We shall notify You without undue delay and shall assist You to the extent reasonably necessary in connection with mitigation of the impact of the Personal Data Breach and any notification to the applicable supervisory authority and data subjects, considering the nature of processing and the information available to Us.
   15. In the event that You consider that the processing of personal data performed pursuant to the Agreement requires a privacy impact assessment or prior consultation with a supervisory authority to be undertaken, following written request from You, We shall use reasonable commercial endeavours to provide relevant information and assistance to You to facilitate such privacy impact assessment or prior consultation. We may charge You for such assistance on a time and materials basis. We shall provide You with a data protection impact assessment upon request, and prior consultations with supervisory authorities, which are required by Article 35 or 36 of the GDPR, in each case solely in relation to the processing of Your personal data by Us.
   16. Following the earlier of termination or expiry of the Agreement (the “End Date”), Your instruction is for Us to delete Your personal data held by Us. Unless We receive a Revised Instruction from You within 10 days of the End Date confirming Your instruction, We may delete Your personal data held by Us. You may, at no additional cost and within that 10-day period following the End Date, choose to have Your personal data returned to You or as otherwise agreed with Us. Where applicable law requires Us to retain all or some of Your personal data, We shall notify You of this lawful requirement.
   17. Where requested by You, We shall demonstrate Our compliance with the foregoing clauses 2.2 to 2.16 inclusive, and shall allow for and contribute to audits (including inspections) conducted by You or another auditor mandated by You (where such persons are subject to binding obligations of confidentiality) on a frequency of no more than once per annum (save where requested by the relevant supervisory authority) and in accordance with the Audit Conditions.
   18. In the event that We consider that Your instructions relating to processing of Your personal data under the Agreement infringes Data Protection Legislation We shall inform You as soon as we become aware and You shall reconsider Your instruction considering the Data Protection Legislation and Our reasoning (where such reasoning is provided). We shall not be obliged to process any of Your personal data in relation to such instructions until You notify Us that Your instructions are non-infringing or amend Your instructions to make them non- infringing and notify Us accordingly. Further, where We request the same, You shall sign a waiver provided by Us which will absolve Us of any liability associated with Us following Your processing instruction.
   19. Without prejudice to any other provision in the Agreement which may apply, You shall for the Licence Term have in place and maintain any and all appropriate consents from the relevant data subjects and or an appropriate lawful basis for processing the personal data of the data subjects affected by the Agreement.
   20. We shall for the Licence Term use reasonable endeavours to assist You in meeting Your obligations under Articles 32 to 36 (inclusive).
   21. Where You consider it necessary to amend this Data Processor Agreement as a result of any changes in law relating to the protection or treatment of personal data, You shall notify Us of the same. Thereafter the parties shall act reasonably and in good faith in agreeing appropriate amendments to this Data Processor Agreement to ensure compliance with such law.
   22. Nothing in these Terms and Conditions is intended to govern the processing of personal data as it relates to personal data collected by Us (or a third party or agent instructed by Us) as an independent controller. For information on how We process personal data as an independent controller, please see Our privacy policy made available on Our website.
   23. Some of Our Dext Products may have an API, allowing the transfer of data (which may include personal data) to and from a Dext Product to a third-party product (“Third-Party API”) or a separate Dext Product (only where You have a licence to this separate Dext Product will the API be turned on). Whether a Third-Party API is turned on or off is at Your discretion, where it is turned on, You are authorising Us to share the relevant data through the Third-Party API and where relevant, receive data from the Third-Party API for input into the Dext Product. We are not liable or responsible for the quality or accuracy of data shared to Us via a Third-Party API. Nor are We liable for what happens to the data once sent outbound via a Third-Party API (the “Transferred API Data”). For the avoidance of doubt, the Transferred API Data will be governed by the contract held between You and the relevant third-party.

3. DETAILS OF PROCESSING

   1. Details of processing are as described in Appendix 1.

4. SECURITY STANDARDS

   1. We are currently ISO27001 certified, and We undertake to maintain this or a similar certification providing at least the same standards for the Licence Term. ISO27001 certification demands best in class controls across:
      1. Information security policies
      2. Organisation of information security
      3. Human resource security
      4. Asset management
      5. Access control
      6. Cryptography
      7. Physical and environmental security
      8. Operations security
      9. Communications security
      10. System acquisition, development and maintenance
      11. Supplier relationships
      12. Information security incident management
      13. Information security aspects of business continuity management
      14. Compliance; with internal requirements, such as policies, and with external requirements, such as laws
   2. Nothing in clause 4 to this Data Processor Agreement (or otherwise) shall prevent Us from replacing the ISO27001 certification with a certification of equivalent or enhanced standing