Data Processing Agreement
1. Index eBusiness Limited, a company incorporated in England and Wales under registration number 07337877, and having its registered office at 182-184 Fleet Road, Fleet, Hampshire, GU51 4BS, England (the "Processor"); and
2. The individual, company or partnership having created an account with the Processor via the website www.leaveplanner.com for the supply of services by the Processor whether as free trial period or paid service (the "Controller").
1. The Processor is providing LeavePlanner as an online absence management solution for organisations that wish to manage absence of staff in a cost-effective way (“LeavePlanner”).
2. The Controller is an individual, company or partnership that wishes to test the services of the Processor and/or make use of the services as a paying user.
3. The Processor and the Controller therefore wish to enter into a contract in accordance with the provisions of this Agreement.
1.1 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;
"Business Hours" means the hours of 09:00 to 17:30 GMT/BST 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 and this Agreement;
"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);
"Effective Date" means the date upon which the Main Contract comes into force;
"Main Contract" means the Terms of Service for LeavePlanner, 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 1" means the schedule following 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.
2.1 This Agreement supplements the Main Contract.
2.2 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.
2.3 If there is a conflict between this Agreement and the Main Contract, then this Agreement shall take precedence.
2.4 This Agreement shall automatically terminate upon the termination of the Main Contract.
2.5 The Main Contract shall automatically terminate upon the termination of this Agreement.
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 2.4, 2.5 or 6 or any other provision of this Agreement. Notwithstanding the foregoing this Agreement shall terminate automatically by the end of the free trial period if the Controller has not purchased a license before this time; and by the end of any fixed license period purchased by the Controller.
4. Data protection
4.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Controller Personal Data.
4.2 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.
4.3 The Controller shall only supply to the Processor, and the Processor shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 1 (Categories of data subject) and of the types specified in Paragraph 2 of Schedule 1 (Types of Personal Data); and the Processor shall only process the Controller Personal Data for the purposes specified in Paragraph 3 of Schedule 1 (Purposes of processing).
4.4 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.
4.5 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.
4.6 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.
4.7 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 on important grounds of public interest.
4.8 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.
4.9 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 (Security measures for Personal Data).
4.10 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, the Controller may terminate this Agreement on 7 days' written notice to the Processor, providing that such notice must be given within the period of 7 days following the date that the Processor informed the Controller of the intended 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.
4.11 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 (Sub-processors of Personal Data).
4.12 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.
4.13 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 shall report any Personal Data breach relating to the Controller Personal Data to the Controller within 24 hours following the Processor becoming aware of the breach. The Processor may charge the Controller at its standard time-based charging rates for any work performed by the Processor at the request of the Controller pursuant to this Clause 4.13.
4.14 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.
4.15 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.
4.16 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 at its standard time-based charging rates for any work performed by the Processor at the request of the Controller pursuant to this Clause 4.16.
4.17 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 of liability
5.1 Limitations of liability shall be regulated in the Main Contract.
5.2 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.
6.1 Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.
6.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
6.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
7. Effects of termination
7.1 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, 4.1- 4.17, 5, 7, 9 and 10.
7.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
8.1 Any notice from one party to the other party under this Agreement must be written and sent by email (using the relevant contact details set out in Clause 8.2) providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
8.2 The parties' contact details for notices under this Clause 8 are as follows:
(a) in the case of notices sent by the Controller to the Processor, email@example.com; and
(b) in the case of notices sent by the Processor to the Controller, the email address registered for the Controller’s account at the time of the notice.
8.3 The contact details set out in Clause 8.2 may be updated from time to time by the Processor posting a new email address on the website www.leaveplanner.com, and the Controller updating its contact information in its online account.
9.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
9.2 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).
9.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
9.4 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.
9.5 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.
9.6 Subject to Clause 5 and the Main Contract, 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.
9.7 This Agreement shall be governed by and construed in accordance with English law.
9.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
10.1 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.
10.2 The Clause headings do not affect the interpretation of this Agreement.
10.3 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.
11.1 The person submitting the sign up form on behalf of the Controller confirms that he/she has the authority to legally bind the Controller and enter into contracts on its behalf. By ticking the box indicated on the sign-up page the Controller accepts to be bound by this Agreement.
11.2 The Processor accepts to be bound by this Agreement when the Processor becomes legally bound by the Main Contract.
SCHEDULE 1 (DATA PROCESSING INFORMATION)
1. Categories of data subject
Members of the Controller’s staff including directors, employees, workers and freelance suppliers.
2. Types of Personal Data
Employment Start Date;
Dates / hours worked;
Dates / hours reported sick;
Dates / hours reported absent; and
Sickness / Absence Details.
3. Purposes of processing
The personal data is processed in order for the Controller to streamline the absence management system for its staff by outsourcing and automating the handling of relevant data with the purpose of obtaining higher productivity and reduced costs.
4. Security measures for Personal Data
Firewalls with regular updates by using patch management software;
Regular operating system software updates by using patch management software;
Real-time protection anti-virus, anti-malware and anti-spyware software on all employee desktops;
Encrypted Backups are performed every 15 minutes and stored both on and offsite with the offsite backups replicated to a further alternate UK datacenter; and
Unique usernames and passwords must be used to access all Personal Data;
5. Sub-processors of Personal Data