Last updated: September 2021

This Data Processing Agreement (“DPA”) forms part of the Herdify (“Herdify”, “Provider”) Terms of Use, or other agreement governing the use of Herdify services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, “your”, “Customer”), and Herdify to reflect the parties’ agreement with regard to the Processing of Personal Data by Herdify solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”.

Agreed terms

1. Definitions and interpretation

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

Definitions:

• Authorised Persons: the persons or categories of persons that the Customer authorises to give the Provider personal data processing instructions.
• Business Purposes: the services described in the terms of agreement
• Data Subject: an individual who is the subject of Personal Data.
• 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 any 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, adaptation 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) and the binding guidance and binding codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
• UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and 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.
• Standard Contractual Clauses (SCC): the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU.
  • A reference to writing or written includes email.
  • In the case of conflict or ambiguity between:
    • any provision contained in the body of this Agreement and any provision contained in the Master Agreement, the provision of the Master Agreement will prevail;
    • any provision contained in the body of this Agreement and any provision contained in the Annexes, the provision in the body of this Agreement will prevail;
    • the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail;
    • any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail; and
    • any of the provisions of this Agreement and any executed SCC, the provisions of the executed SCC will prevail.

2. Personal data types and processing purposes

• The Customer and the Provider acknowledge that for the purpose of the Data Protection Legislation, the Customer is the controller and the Provider is the processor.
• 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.

3. Provider’s obligations

• 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 purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Provider must without undue delay notify the Customer if, in its opinion, the Customer’s instruction would not comply with the Data Protection Legislation.
• The Provider must without undue delay 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.
• 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, or as required by law or supervisory authority. If a law, court, regulator or supervisory authority requires the Provider to process or disclose Personal Data, the Provider must, where reasonably practicable, first 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.
• 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.
• The Provider must without undue delay notify the Customer of any changes to Data Protection Legislation that may adversely affect the Provider’s performance of the Master Agreement.

4. Provider’s employees

• The Provider will ensure that all employees:
  • 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;
  • have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
  • are aware both of the Provider’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.

5. Security

• 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.
• The Provider must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:
  • the pseudonymisation and encryption of personal data;
  • the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  • 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
  • a process for regularly testing, assessing and evaluating the effectiveness of security measures.

6. Personal Data Breach

• The Provider will without undue delay notify the Customer once it becomes aware of a Personal Data Breach as defined in Article 4 (12) of GDPR.
• Where the Provider becomes aware of a Personal Data Breach, it shall, without undue delay, also provide the Customer with the following information:
  • description of the nature of the breach including the categories and approximate number of both Data Subjects and Personal Data records concerned;
  • the likely consequences; and
  • description of the measures taken, or proposed to be taken to address the breach, including measures to mitigate its possible adverse effects.
• The Provider will not inform any third party of any Personal Data Breach without first obtaining the Customer’s prior written consent, except when required to do so by law.

7. Cross-border transfers of personal data

• The Provider (or any subcontractor) must not transfer or otherwise process Personal Data outside the European Economic Area (EEA), or in the event that the UK ceases to be a member of the EEA, without obtaining the Customer’s prior written consent.
• Where such consent is granted, the Provider may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:
  • the Provider is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals.
  • the Provider participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Provider (and, where appropriate, the Customer) 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 General Data Protection Regulation ((EU) 2016/679).
• If any Personal Data transfer between the Customer and the Provider requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting Personal Data to the Provider outside the EEA), the parties will complete all relevant details in, and execute, please contact legal@herdify.com if this is required.
• If the Customer consents to appointment by the Provider located within the EEA of a subcontractor located outside the EEA in compliance with the provisions of clause 8, then the Customer authorises the Provider to enter into any SCC provided. The Provider will make the executed SCC available to the Customer on request.

8. Subcontractors

• The Provider may only authorise a third party (subcontractor) to process the Personal Data if:
  • the Customer is provided with an opportunity to object to the appointment of each subcontractor within 7 days after the Provider supplies the Customer with full details regarding such subcontractor;
  • the Provider enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Customer’s written request, provides the Customer with copies of such contracts;
  • the Provider maintains control over all Personal Data it entrusts to the subcontractor; and
  • the subcontractor’s contract terminates automatically on termination of this Agreement for any reason.
• Where the subcontractor fails to fulfil its obligations under such written agreement, the Provider remains fully liable to the Customer for the subcontractor’s performance of its agreement obligations.
• The Parties consider the Provider to control any Personal Data controlled by or in the possession of its subcontractors.
• On the Customer’s written request, the Provider will audit a subcontractor’s compliance with its obligations regarding the Customer’s Personal Data and provide the Customer with the audit results.

9. Complaints, data subject requests and third party rights

• The Provider must, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:
  • 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
  • information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation.
• The Provider must notify the Customer without undue delay 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.
• The Provider will give the Customer its reasonable co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
• 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

• This Agreement will remain in full force and effect so long as:
  • the Master Agreement remains in effect; or
  • the Provider retains any Personal Data related to the Master Agreement in its possession or control (Term).
• Any provision 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.

11. Data return and destruction

• 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.
• On termination of the Master Agreement for any reason or expiry of its term, 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, except for one copy that it may retain and use for [TIME PERIOD] for audit purposes only or as required by law.

12. Records

• The Provider will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data it carries out for the Customer, including but not limited to, the access, control and security of the Personal Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in clause 1 (Records).
• 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.
• The Customer and the Provider must review the information listed in the Annexes to this Agreement once a year to confirm its current accuracy and update it when required to reflect current practices.

13. Audit

• The Provider will permit the Customer and its third-party representatives to audit the Provider’s compliance with its Agreement obligations, on at least 10 working days’ notice, during the Term. The Provider will give the Customer and its third-party representatives all reasonable assistance to conduct such audits. The assistance may include, but is not limited to:
  • physical access to, 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;
  • access to and meetings with any of the Provider’s personnel reasonably necessary to provide all explanations and perform the audit effectively; and
  • inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to store, process or transport Personal Data.
• The notice requirements in clause 1 will not apply if the Provider is in breach of any of its obligations under this Agreement or any Data Protection Legislation.
• 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:
  • as soon as reasonably practicable, conduct its own audit to determine the cause;
  • produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;
  • provide the Customer with a copy of the written audit report; and
  • remedy any deficiencies identified by the audit.
• From time to time, the Provider will conduct site audits of its Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this Agreement, including, but not limited to, obtaining a network-level vulnerability assessment performed by a recognised third-party audit firm based on recognised industry best practices.
• The Provider will address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Provider’s management.

14. Liability

• Subject always to article 82 of GDPR and clause 14.2 below, the Provider shall only be liable to the Customer for any losses, damages and costs (including reasonable legal costs) arising from the Provider’s breach of this Agreement. The Provider shall only be liable to the extent that such payment has been ordered by a competent court in the UK, or by way of a written agreement between the Customer and the Provider after the breach arises. Any limitation of liability set forth in the Master Agreement will apply to this Agreement.
• Notwithstanding anything else contained in this Agreement, the Provider shall not be liable to the Customer for any loss of revenue, loss of profits, loss of goodwill, ex-gratia payments and/or any indirect loss.

15. Notice

• Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to: legal@herdify.com
• 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.
• A notice given under this agreement is not valid if sent by email.

16. Customer’s obligations

The Customer shall comply with its obligations pursuant to the Data Protection Legislation including in relation to its collection, processing and provision of Personal Data to the Provider in connection with this Agreement.