Data Processing Agreement

This Data Processing Agreement ("DPA") supplements the Service Agreement between you ("the Customer") and us ("TM4B Ltd.", "the Provider") in respect to your use of the Service (as defined in our Service Agreement), thereby requiring us to process Personal Data on your behalf.

This DPA sets out the additional terms, requirements and conditions upon which we will process Personal Data when providing the Service. This DPA contains the mandatory clauses required by Article 28(3) of the GDPR.

To complete this DPA and enter into it, please visit the privacy section of the Client Portal.

AGREED TERMS

1. DEFINITIONS AND INTERPRETATION

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

1.1 Definitions:

Both parties: you ("the Customer") and us ("TM4B Ltd.", "the Provider")

Business Purposes: the Service described in the Service Agreement.

Data Subject: an individual who is the subject of Personal Data.

Personal Data: any information relating to an identified or identifiable natural person that is processed by us as a result of, or in connection with, the provision of the services under the Service 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: all applicable privacy and data protection laws including the GDPR and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time.

GDPR: General Data Protection Regulation ((EU) 2016/679).

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, as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which comprises Annex B.

1.2 This DPA is subject to the terms of the Service Agreement and is incorporated into the Service Agreement. Interpretations and defined terms set forth in the Service Agreement apply to the interpretation of this DPA.

1.3 The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

1.4 A reference to writing or written includes email.

1.5 In the case of conflict or ambiguity between:

(a) 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;

(b) the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Annexes, the provision contained in the Annexes will prevail;

(c) any of the provisions of this DPA and the provisions of the Service Agreement, the provisions of this DPA will prevail; and

(d) any of the provisions of this DPA and any executed SCC, the provisions of the executed SCC will prevail.

2. PERSONAL DATA TYPES AND PROCESSING PURPOSES

2.1 Both parties acknowledge that for the purpose of the Data Protection Legislation, you are the controller and we are the processor.

2.2 You retain control of the Personal Data and remain 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 that you give us.

2.3 Our Privacy Notice describes the subject matter, duration, nature and purpose of processing and the Personal Data categories and Data Subject types in respect of which we may process to fulfil the Business Purposes.

3. PROVIDER'S OBLIGATIONS

3.1 We will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes and in accordance with your written instructions. We will not process the Personal Data for any other purpose or in any way that does not comply with this DPA or the Data Protection Legislation.

3.2 We will promptly comply with any Customer request or instruction requiring us to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3 We will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless you or this DPA specifically authorise the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires us to process or disclose Personal Data, we will first inform you of the legal or regulatory requirement and give you an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.4 We will reasonably assist you with meeting your compliance obligations under the Data Protection Legislation, taking into account the nature of our processing and the information available to us, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

3.5 We will promptly notify you of any changes to Data Protection Legislation that may adversely affect our performance of the Service Agreement.

4. PROVIDER'S EMPLOYEES

4.1 We will ensure that all employees:

(a) 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;

(b) have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and

(c) are aware both of our duties and their personal duties and obligations under the Data Protection Legislation and this DPA.

5. SECURITY

5.1 We will 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.

5.2 We will implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

(a) the pseudonymisation and encryption of personal data;

(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c) 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

(d) a process for regularly testing, assessing and evaluating the effectiveness of security measures.

6. PERSONAL DATA BREACH

6.1 We will promptly and without undue delay notify you if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. We will restore such Personal Data at our own expense.

6.2 We will immediately and without undue delay notify you if we become aware of any incidents that involve:

(a) an accidental, unauthorised or unlawful processing of the Personal Data; or

(b) a Personal Data Breach.

6.3 Where we become aware of any such incident, we shall, without undue delay, also provide you with the following information:

(a) a description of the nature of the incident, including the categories and approximate number of both Data Subjects and Personal Data records concerned;

(b) the likely consequences; and

(c) a description of the measures taken, or proposed to be taken to address the incident, including measures to mitigate its possible adverse effects.

6.4 Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, we will reasonably cooperate with you with respect to any investigation.

6.5 We agree that you have the sole right to determine:

(a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in your discretion, including the contents and delivery method of the notice; and

(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

6.6 We will cover all reasonable expenses associated with the performance of the obligations under Clause 6.2 and Clause 6.4 unless the matter arose from your specific instructions, negligence, wilful default or breach of this DPA, in which case you will cover all reasonable expenses.

7. CROSS-BORDER TRANSFERS OF PERSONAL DATA

7.1 We will only process, or permit the processing, of Personal Data outside the EEA if at least one of the following conditions is met:

(a) the territory is found by the European Commission under the Data Protection Legislation to provide adequate protection for the privacy rights of individuals; or

(b) we participate in a valid cross-border transfer mechanism that ensures 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 GDPR; or

(c) the transfer otherwise complies with the Data Protection Legislation.

7.2 If any Personal Data transfer requires execution of SCC in order to comply with the Data Protection Legislation (where you are the entity exporting Personal Data to us outside the EEA), we will complete all relevant details in, and execute, the SCC, and take all other actions required to legitimise the transfer.

7.3 If you consent to appointment by we located within the EEA of a subcontractor located outside the EEA in compliance with the provisions of clause 8, then you authorises us to enter into SCC with the subcontractor in your name and on its behalf. We will make the executed SCC available to you on request.

8. SUBCONTRACTORS

8.1 We may only authorise a third party (subcontractor) to process the Personal Data if:

(a) you are given an opportunity to object to the appointment of each subcontractor within 14 days after we provide you with full details regarding such subcontractor;

(b) we enter into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon your written request, provides you with copies of such contracts;

(c) we maintain control over all Personal Data it entrusts to the subcontractor; and

(d) the subcontractor's contract terminates automatically on termination of this DPA for any reason.

8.2 Those subcontractors approved as at the commencement of this DPA are as set out in Annex A.

8.3 Where the subcontractor fails to fulfil its obligations under such written agreement, we remain fully liable to you for the subcontractor's performance of its agreement obligations.

8.4 The Parties consider us to control any Personal Data controlled by or in the possession of its subcontractors.

9. COMPLAINTS, DATA SUBJECT REQUESTS AND THIRD PARTY RIGHTS

9.1 We will, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to you as you may reasonably require, to enable you to comply with:

(a) the rights of Data Subjects under the Data Protection Legislation; and

(b) information or assessment notices served on you by any supervisory authority under the Data Protection Legislation.

9.2 We will notify you immediately if we receive 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.

9.3 We will notify you within 3 working days if we receive a request from a Data Subject to exercise any of their related rights under the Data Protection Legislation.

9.4 We will give you our full cooperation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5 We will not disclose the Personal Data to any Data Subject or third party other than at your request or instruction, as provided for in this DPA or as required by law.

10. TERM AND TERMINATION

10.1 This DPA will remain in full force and effect so long as:

(a) the Service Agreement remains in effect, or

(b) we retain any Personal Data related to the Service Agreement in our possession or control.

10.2 Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Service Agreement in order to protect Personal Data will remain in full force and effect.

10.3 Our failure to comply with the terms of this DPA is a material breach of the Service Agreement. In such event, you may terminate the Service Agreement effective immediately.

10.4 If a change in any Data Protection Legislation prevents us from fulfilling all or part of our obligations, we will suspend the processing of Personal Data until that processing complies with the new requirements. If we are unable to bring the Personal Data processing into compliance with the Data Protection Legislation, we may terminate the Service Agreement on written notice to you.

11. DATA RETURN AND DESTRUCTION

11.1 At your request, we will give you a copy of your Personal Data.

11.2 On termination of the Service Agreement for any reason or expiry of its term, we will securely delete or destroy and, if directed in writing by you, return all or any Personal Data related to this DPA in our possession or control.

11.3 If any law, regulation, or government or regulatory body requires us to retain any documents or materials that we would otherwise be required to return or destroy, we will notify you in writing of that retention requirement, giving details of the documents or materials that we must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

12. RECORDS

12.1 We will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data we carry out for you (Records).

12.2 We will ensure that the Records are sufficient to enable you to verify our compliance with our obligations under this DPA and we will provide you with copies of the Records upon request.

12.3 We will update the information listed in the Annexes to this DPA to ensure that it always reflects current practices.

12.4 Both parties are responsible for reviewing the information listed in the Annexes to this DPA at least once a year to confirm its current accuracy.

13. AUDITS

13.1 We will contribute to audits or inspections conducted by our authorised auditors and will make available to you upon reasonable request the respective audit reports (no more frequently than once per year) provided that you enter into a non-disclosure agreement with us regarding such audit reports.

13.2 If a Personal Data Breach occurs or is occurring, or we become aware of a breach of any of our obligations under this DPA or any Data Protection Legislation, we will:

(a) promptly conduct our own audit to determine the cause;

(b) produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;

(c) provide you with a copy of the written audit report; and

(d) remedy any deficiencies identified by the audit within 45 days.

13.3 At least once a year, we will conduct audits of our Personal Data processing practices and the information technology and information security controls for all facilities and systems used in complying with our obligations under this DPA.

13.5 On your written request, we will make all of the relevant audit reports available to you for review. You will treat such audit reports as our confidential information under this DPA.

13.6 We will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by our management.

14. WARRANTIES

14.1 We warrant and represent that:

(a) our employees, subcontractors, agents and any other person or persons accessing Personal Data have received the required training on the Data Protection Legislation relating to the Personal Data;

(b) we and anyone operating on our behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;

(c) considering the current technology environment and implementation costs, we will take appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data, and ensure a level of security appropriate to:

(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage;

(ii) the nature of the Personal Data protected; and

(iii) comply with all applicable Data Protection Legislation and our information and security policies, including the security measures required in Clause 5.1.

14.2 You warrant and represent that our expected use of the Personal Data for the Business Purposes and as specifically instructed by you will comply with the Data Protection Legislation.

15. NOTICE

15.1 Any notice or other communication given by you to us in connection with this DPA must be in writing and delivered to privacy@tm4b.com or Data Privacy Manager, TM4B Ltd, 6 Station Road, London, NW4 4PZ.

15.2 Any notice or other communication given by us to you must be in writing and delivered to the primary email address we hold for you on your TM4B account. You are responsible for ensuring this remains up-to-date.

15.3 Clauses 15.1 and 15.2 do 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.