Data Processing Agreement

This Data Processing Agreement describes how Bananadesign will process personal data as part of its obligations under a contract or providing a service

Parties

  1. Bananadesign Ltd, a company incorporated in England and Wales (registration number 6119615 number) having its registered office at The Old Cable House, Leighton SY21 8HJ (the “Processor”); and
  2. The Client as identified in the Main Contract (the “Controller”).

Background

  1. This processor agreement is a part of the Bananadesign Ltd Terms and Conditions and applies if we provide a Digital Service for the Controller.
  2. The Controller has employed the Processor to carry out work for a Digital Service defined in the Main contract.
  3. The Processor and the Controller therefore wish to enter into a contract in accordance with the provisions of this Agreement.

Agreement

1 Definitions

  1. In this Agreement except to the extent expressly provided otherwise:
    “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
    “Business Day” means any weekday other than a bank or public holiday in England and Wales:
    “Business Hours” means the hours specified in the Terms and Conditions on a Business Day;
    “Controller Personal Data” means any Personal Data that is processed by the Processor on behalf of the Controller under or in relation to the Main Contract;
    “Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Controller Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
    “Digital Services” means one or more of: website, website hosting, web application (or web app), database, email, cloud platform, social media service or other online service.
    “Effective Date” means the date upon which the Main Contract comes into force;
    “Main Contract” means the contract between the parties dated, as it may be amended and updated from time to time;
    “Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
    “Schedule” means any schedule attached to the main body of this Agreement; and
    “Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.

2 Supplemental

  1. This Agreement supplements the Main Contract.
  2. Any capitalised terms that are:
    (a) used in this Agreement;
    (b) defined in the Main Contract; and
    (c) not defined in this Agreement,
    shall in this Agreement have the meanings given to them in the Main Contract.
  1. If there is a conflict between this Agreement and the Main Contract, then this Agreement shall take precedence.
  2. Any breach of this Agreement shall be deemed to be a breach of the Main Contract.
  3. This Agreement shall automatically terminate upon the termination of the Main Contract.
  4. The Main Contract shall automatically terminate upon the termination of this Agreement.

3 Term

  1. This Agreement shall come into force upon the Effective Date.
  2. This Agreement shall continue in force indefinitely subject to termination in accordance with Clause 2.6, 2.7 or 6 or any other provision of this Agreement.

4 Data protection

  1. Each party shall comply with the Data Protection Laws with respect to the processing of the Controller Personal Data.
  2. The Controller warrants to the Processor that it has the legal right to disclose all Personal Data that it does in fact disclose to the Processor under or in connection with this Agreement.
  3. The Controller shall only supply to the Processor, and the Processor shall only process, in each case under or in relation to this Agreement:
    (a) the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 1 (Data processing information) or such other categories as may be agreed by the parties in writing; and
    (b) Personal Data of the types specified in Paragraph 2 of Schedule 1 (Data processing information) or such other types as may be agreed by the parties in writing.
  4. The Processor shall only process the Controller Personal Data for the purposes specified in Paragraph 3 of Schedule 1 (Data processing information).
  5. The Processor shall only process the Controller Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 4.
  6. The Processor shall only process the Controller Personal Data on the documented instructions of the Controller (including with regard to transfers of the Controller Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.
  7. The Controller hereby authorises the Processor to make the following transfers of Controller Personal Data:
    (a) the Processor may transfer the Controller Personal Data internally to its own employees, offices and facilities in the United Kingdom, providing that such transfers must be protected by appropriate safeguards, namely Paragraph 4 of Schedule 1 (Data processing information) ;
    (b) the Processor may transfer the Controller Personal Data to its sub-processors in the jurisdictions identified in Paragraph 5 of Schedule 1 (Data processing information), providing that such transfers must be protected by any appropriate safeguards identified therein; and
    (c) the Processor may transfer the Controller Personal Data to a country, a territory or sector to the extent that the European Commission has decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
  8. The Processor shall promptly inform the Controller if, in the opinion of the Processor, an instruction of the Controller relating to the processing of the Controller Personal Data infringes the Data Protection Laws.
  9. Notwithstanding any other provision of this Agreement, the Processor may process the Controller Personal Data if and to the extent that the Processor is required to do so by applicable law. In such a case, the Processor shall inform the Controller of the legal requirement before processing, unless that law prohibits such information.
  10. The Processor shall ensure that persons authorised to process the Controller Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  11. The Processor and the Controller shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Controller Personal Data, including those measures specified in Paragraph 4 of Schedule 1 (Data processing information).
  12. The Processor must not engage any third party to process the Controller Personal Data without the prior specific or general written authorisation of the Controller. In the case of a general written authorisation, the Processor shall inform the Controller at least [14 days] in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Controller objects to any such changes before their implementation, then the Processor must not implement the changes. The Processor shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Processor by this Clause 4.
  13. As at the Effective Date, the Processor is hereby authorised by the Controller to engage, as sub-processors with respect to Controller Personal Data, the third parties, and third parties within the categories, identified in Paragraph 5 of Schedule 1 (Data processing information).
  14. The Processor shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Controller with the fulfilment of the Controller’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
  15. The Processor shall assist the Controller in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Processor may charge the Controller for any work performed by the Processor at the request of the Controller pursuant to this Clause 4.15.
  16. The Processor must notify the Controller of any Personal Data breach affecting the Controller Personal Data without undue delay[ and, in any case, not later than 72 hours after the Processor becomes aware of the breach.
  17. The Processor shall make available to the Controller all information necessary to demonstrate the compliance of the Processor with its obligations under this Clause 4 and the Data Protection Laws. The Processor may charge the Controller for any work performed by the Processor at the request of the Controller pursuant to this Clause 4.17.
  18. The Processor shall, at the choice of the Controller, delete or return all of the Controller Personal Data to the Controller after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
  19. The Processor shall allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller in respect of the compliance of the Processor’s processing of Controller Personal Data with the Data Protection Laws and this Clause 4. The Processor may charge the Controller for any work performed by the Processor at the request of the Controller pursuant to this Clause 4.19.
  20. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

5. Limits upon exclusions of liability

  1. Nothing in this Agreement will:
    (a) limit or exclude any liability for death or personal injury resulting from negligence;
    (b) limit or exclude any liability for fraud or fraudulent misrepresentation;
    (c) limit any liabilities in any way that is not permitted under applicable law; or
    (d) exclude any liabilities that may not be excluded under applicable law.

6 Termination

  1. Either party may terminate this Agreement according to the Cancellation section of the Terms and Conditions.

7 Effects of termination

  1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 2.2, 2.3, 2.4, 2.5, 4.1, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 5, 7, 9 and 10.
  2. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

8 Notices

  1. Notices may be served according to the Notices section of the Terms and Conditions

9 General

  1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
  2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
  3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
  4. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
  5. This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
  6. Subject to Clause 5, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
  7. This Agreement shall be governed by and construed in accordance with English law.
  8. The courts of England and Wales shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

10. Interpretation

  1. In this Agreement, a reference to a statute or statutory provision includes a reference to:
    (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    (b) any subordinate legislation made under that statute or statutory provision.
  2. The Clause headings do not affect the interpretation of this Agreement.
  3. References in this Agreement to “calendar months” are to [the 12 named periods (January, February and so on) into which a year is divided].
  4. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Execution

The parties have indicated their acceptance of this Agreement by executing it via the agreed Contract.

Schedule 1 (Data Processing Information)

1. Categories of data subject

  • Any Natural Person accessing and/or using the Digital Services through the controller’s account (“users”), usually the Controller’s own internal and external users of the Digital Services
  • Any Natural Person: (i) whose personal data is stored on, with or collected via the Digital Services, or (ii) to whom users engage or communicate with via the Digital Services, usually the Controller’s staff, clients, supporters, users, website visitors, and contacts

2. Types of Personal Data

  • user logins, email addresses, passwords, addresses, and any other data stored in user profiles
  • ecommerce purchase records, file download records, or event booking records
  • data submitted in forms to the Digital Services
  • any personal data present in content stored in the Digital Services or in the Controller’s social media accounts
  • comments or forum posts and personal data associated with comments or forum posts
  • user tracking and analytics
  • online identifiers such as session cookie identifiers and IP addresses
  • emails sent and received (if the Processor hosts the Controller’s email or provides support with the email service)
  • contacts and calendar entries (if the Processor hosts these services or helps with the Controller’s IT systems)
  • documents and media items

3. Purposes of processing

The Processor will process the Personal Data in order to:

  • host the Controller’s website, web-based or mobile application, or database
  • move the Controller’s website, web-based or mobile application, database, media or other files and data to a new host or server, or to provide the Controller with an archive of it
  • carry out work requests involving the Controller’s website, web-based or mobile application, database, social media or other IT systems

4. Security measures for Personal Data

  • use of long, strong, random passwords and not re-using passwords across services
  • generating and storing passwords in an advanced, secure password vault tool
  • use of 2-factor authentication for services where available
  • using HTTPS where possible for client sites and advising clients on good security practices
  • endeavouring to keep software up to date, while being aware that major software releases may contain new flaws and therefore require caution
  • use of CCTV to monitor external entrances and exists to the office

5. Sub-processors of Personal Data

  • Shared hosting companies
    • Eco Web Hosting
  • Virtual Private Server or Cloud Computing companies
    • Layershift
    • Cloudways
    • Vultr
  • Service providers who provide email, IT, storage, online document systems, backups, project management and other business-related services.
    • Asana
    • Campaign Monitor
    • Dropbox
    • Evernote
    • Google
    • Hetzner
    • MailChimp
    • MailGun

Updated

  • 14 January 2021: added sub-processors