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Personal Data Sharing Agreement
PARTIES
A) The Business Client (Data Discloser)
B) Advance Online Digital Media Group Ltd incorporated and registered in England and Wales. Company number 11136112. Registered office is at Unit 8 The Elms Church Road, Harold Wood, Romford, Essex. RM3 0JU. (Data Receiver)
BACKGROUND
A) The Data Discloser agrees to share the Personal Data with the Data Receiver in the European Economic Area (EEA) on terms set out in the Agreement.
B) The Data Receiver agrees to use the Personal Data within the EEA on the terms set out in this Agreement.
C) This is a free-standing Agreement that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
AGREED TERMS
1) Interpretation
The following definitions and rules of interpretation apply in this agreement.
Definitions
1.1 Agreed Purposes: To fulfil the contract between the parties for the provision of products and services contained therein.
1.2 Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the UK Data Protection Legislation in force at the time.
1.3 Data Discloser: a party that discloses Shared Personal Data to the other party.
1.4 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.
1.5 Permitted Recipients: the parties to this agreement, the employees of each party and any third parties engaged to perform obligations in connection with this agreement..
1.6 Shared Personal Data: the personal data to be shared between the parties under clause 1.1 of this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
a) Name, Address, Telephone and other Contact Details
b) Banking and credit/debit card details and other forms of payment
c) Social Media and other application login information
d) Domain & email registry/login details
2) Data Protection
2.1 Shared Personal Data. This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
2.2 Effect of non-compliance with UK Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
2.3 Particular obligations relating to data sharing. Each party shall:
a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
c) process the Shared Personal Data only for the Agreed Purposes;
d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
ii) ensures that
(i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or
(ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or
(iii) Binding corporate rules are in place or
(iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
2.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the UK Data Protection Legislation. In particular, each party shall:
a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
b) promptly inform the other party about the receipt of any data subject access request;
c) provide the other party with reasonable assistance in complying with any data subject access request;
d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
f) notify the other party without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
i) maintain complete and accurate records and information to demonstrate its compliance with this clause 2 and allow for audits by the other party or the other party’s designated auditor; and
j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the UK Data Protection Legislation.
3) Indemnity
3.1 The Data Discloser and Data Receiver undertake to indemnify each other and hold each other harmless from any cost, charge, damages, expense or loss which they cause each other as a result of their breach of any of the provisions of this Agreement.
3.2 Indemnification hereunder is contingent upon:
a) the party to be indemnified the indemnified party promptly notifying the other party (the indemnifying party of a claim)
b) the indemnifying party having sole control of the defence and settlement of any such claim, and
c) the indemnified party providing reasonable co-operation and assistance to the indemnifying party in defence of such claim.
4) Allocation of Cost
Each party shall perform its obligations under this Agreement at its own cost.
5) Limitation of Liability
5.1 Neither party excludes or limits liability to the other party for:
a) fraud or fraudulent misrepresentation;
b) death or personal injury caused by negligence;
c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
d) any matter for which it would be unlawful for the parties to exclude liability.
5.2 Subject to clause 18.1, neither party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
a) any loss, whether direct or indirect, of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
b) loss, whether direct or indirect, of anticipated savings or wasted expenditure, including management time; or
c) any loss or liability, whether direct or indirect, under or in relation to any other contract.
6) Third Party Rights
6.1 No one other than a party to this Agreement, shall have any right to enforce any of its terms.
7) Direct Marketing
7.1 If the Data Receiver processes the Shared Data for the purposes of direct marketing, each party shall ensure that:
a) the appropriate level consent has been obtained from the relevant data subjects to allow the Shared Data to be used for the purposes of direct marketing in compliance with the Data Protection Legislation; and
b) effective procedures are in place to allow the data subject to “opt-out” from having their Shared Personal Data used for such direct marketing purposes.
8) Variation
8.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
9) Waiver
9.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10) Severance
10.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
10.2 If any provision or part-provision of this agreement is deemed deleted under clause 10.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11) Changes to the Applicable Law
11.1 If during the Term the Data Protection Legislation changes in a way that the Agreement is no longer adequate for the purpose of governing lawful data sharing exercises, the Parties agree that the Single Point of Contact (SPoC) will negotiate in good faith to review the Agreement in the light of the new legislation.
12) No Partnership or Agency
12.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party, the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13) Entire Agreement
13.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty, whether made innocently or negligently, that is not set out in this Agreement.
13.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in this Agreement.
14. Further Assurance
14.1 At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
15) Force Majeure
15.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
16) Rights and Remedies
16.1 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17) Notice
17.1 Any notice, or other communication, given to a party under or in connection with this agreement shall be in writing, addressed to the SPoCs and shall be:
a) delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b) sent by email to the SPoC.
17.2 Any notice, or communication, shall be deemed to have been received:
a) If sent by pre-paid first-class post or the next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
b) if sent by email, at the time of transmission, or if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2(b), business hours means 9:00 am to 5:00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
17.3 This clause 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.
18) Governing Law
18.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
19) Jurisdiction
19.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims), arising out of or in connection with this Agreement or its subject matter or formation.
