1. Definitions

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 17:00 GMT 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 the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;

Effective Date” means the date upon which the Main Contract comes into force;

EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

Main Contract” means the contract between the parties, as it may be amended and updated from time to time;

Personal Data” means personal data under any of the Data Protection Laws;

Schedule” means any schedule attached to the main body of this Agreement;

Term” means the term of the Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2; and

UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time.

2. Supplemental

2.1  This Agreement supplements the Main Contract between the two parties.

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 the Main Contract shall take precedence.

2.4  Any breach of this Agreement shall be deemed to be a breach of the Main Contract.

2.5  Any breach of the Main Contract shall be deemed to be a breach of this Agreement.

2.6  This Agreement shall automatically terminate upon the termination of the Main Contract.

2.7  The Main Contract shall automatically terminate upon the termination of this Agreement.

3. Term

3.1  The Agreement shall come into force upon the Effective Date of the contract.

3.2  The 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

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:

(a) the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 1 (Data processing information) and

(b) Personal Data of the types specified in Paragraph 2 of Schedule 1 (Data processing information.

4.4  The Processor shall only process the Controller Personal Data for the purposes specified in Paragraph 3 of Schedule 1 (Data processing information).

4.5  The Processor shall only process the Controller Personal Data during the Term and for not more than 60 days following the end of the Term, subject to the other provisions of this Clause 4.

4.6  The Processor shall only process the Controller Personal Data on the documented instructions of the Controller as set out in the Main contract.

4.7  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, providing that such transfers must be protected by appropriate safeguards;

(b) the Processor may transfer the Controller Personal Data to its third party processors in the jurisdictions identified in Paragraph 5 of Schedule 1 (Data processing information) and may permit its third party processors to make such transfers, 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 competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

4.8  The Processor shall 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.

4.9  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 on important grounds of public interest.

4.10  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.

4.11  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.

4.12  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.

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 and third parties within the categories, identified in Paragraph 5 of Schedule 1 (Data processing information).

4.14  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.

4.15  The Processor may assist the Controller where able 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.

4.16  The Processor must notify the Controller of any Personal Data breach from the Processor affecting the Controller Personal Data without undue delay.

4.17  The Processor shall make available to the Controller information necessary to demonstrate the compliance of the Processor with its obligations under 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 4.17.

4.18  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.

4.19  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.

5. Limits upon exclusions of liability

5.1  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

6.1  Either party may terminate the Agreement by giving to the other party not less than 30 days written notice of termination, expiring only at the end of the Minimum Term.

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  Subject to applicable law, 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

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, 2.4, 2.5, 4, 5, 7, 9 and 10].

7.2  Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.

8. Notices

8.1  Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 8.2):

(a) delivered personally;

(b) sent by courier;

(c) sent by recorded signed-for post;

(d) sent by email; or

(e) submitted using recipient party’s online contractual notification facility,

8.2  The parties’ contact details for notices under this Clause 8 are detailed in the main contract.

9. General

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, 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. Interpretation

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  References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

10.4  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.

SCHEDULE 1 (DATA PROCESSING INFORMATION)

1. Categories of data subject 

i) The customers

ii) The customers donors and any other stakeholders

iii) Suppliers of the customer

iv) Contractors of the customer

v) Volunteers of the customer

The Controller may share other Categories of data subject not included in this list, and these Categories should fall under the scope of this agreement unless agreed in writing otherwise.

2. Types of Personal Data

The Customer may upload, submit or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data:

Customer: Identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information).

Donor: Identification and contact data (name, demographic information, address, title, contact details, including email address); personal interests or preferences (including donation history, marketing preferences and publicly available social media profile information); financial information (credit card details, account details, payment information).

The Controller may share other Types of Personal Data not included in this list, and these Types should fall under the scope of this agreement unless agreed in writing otherwise.

3. Purposes of processing

The data will only be processed for the following (i) processing as necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.

4. Security measures for Personal Data

The following security measures are available to secure Personal Data – password security, two-factor authentication encryption, firewalls etc.

5. Sub-processors of Personal Data

The Customer agrees that the N3O ltd may engage Sub-processors to process Customer Data on Customer’s behalf. The Sub-processors currently engaged by N3O and authorized by Customer are detailed below.

Service

Description

Additional information

Location

Amazon Web Services

Cloud infrastructure

https://aws.amazon.com/privacy/

UK

Google

Cloud infrastructure

 Google Cloud Privacy Commitments

UK

Loqate

UK postcode enrichment

 Privacy Policy – Ideal Postcodes

UK

Zendesk

Help desk

 Terms and Policies | Intercom

US

Sendgrid

Email service provider

 Twilio Privacy Statement

US

Slack

Communication platform

 Privacy policy | Legal

US

Umbraco

Content Management System

 Umbraco Privacy Statement

EU

Hubspot

Customer Relationship Management

 HubSpot Privacy Policy

US

Mailchimp

Email Marketing service

  Mailchimp’s Privacy Policy | Mailchimp

US

N3O ltd shall update the above list as necessary with the latest sub-processors in the above table.

N3O Ltd shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Sub-processor.