This Data Processing Agreement is made between:
(1) TDS ULTRA LIMITED incorporated and registered in England and Wales with company number 10219630 whose registered office is at Europa House, Southwick Square, Southwick, Brighton, West Sussex, England, BN42 4FJ (TDS Ultra); and
(2) The Customer as defined in the TDS Ultra Proposal (as defined below) (”the Customer”).
(A) TDS Ultra is a specialist provider of vehicle tracking, fleet and driver performance data and risk data analysis, which it provides to through various channels including via its including the TDS Ultra software as a service offerings, which it makes available to clients on a subscription basis.
(B) As part of the provision of its business services to the Customer, including provided where referenced pursuant to a Main Agreement, TDS Ultra may process personal data on behalf of the Customer.
(C) This Personal Data Processing Agreement (Agreement) sets out the additional terms, requirements and conditions on which TDS Ultra will process Personal Data when providing services under the Master Agreement. This Agreement contains the mandatory clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) – UK GDPR) for contracts between controllers and processors .
The Terms of which are Agreed as follows:
1. Definitions and Interpretation
1.1 TDS Ultra has agreed to provide vehicle tracking, fleet and driver performance data and other risk data analysis services (the Services) to the Customer. In the performance of such Services, TDS Ultra will process Protected Data (defined below) on behalf of the Customer.
1.2 In consideration for the Customer engaging the services of TDS Ultra, TDS Ultra shall comply with the data security, confidentiality and other obligations imposed on it under this Data Processing Agreement.
1.3 For the purposes of this Data Processing Agreement:
Authorised Persons: the persons or categories of persons, including sub-contractors, that the Customer authorises to give TDS Ultra Personnel data processing instructions.
Business Purposes: the services described in this Data Processing Agreement or relevant Main Agreement or any other purpose specifically agreed in writing between the parties.
Commissioner: the UK Information Commissioner.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given to them in the Data Protection Legislation.
Data Protection Legislation: the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data, including the DPA 2018 (and UK GDPR) as amended from time to time.
Data Subject: the identified or identifiable living individual to whom the Personal Data relates.
DPA 2018: Data Protection Act 2018.
Main Agreement: a commercial agreement entered into by the parties to which this Data Processing Agreement attaches.
Personal Data: means any information relating to an identified or identifiable living individual that is processed by TDS Ultra on behalf of the Customer as a result of, or in connection with, the provision of the services under the Master Agreement; an identifiable living individual 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 the individual.
Personal Data Breach: a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to, the Personal Data.
Processing, processes, processed, process: any activity that involves the use of the Personal Data. It includes, but is not limited to, any operation or set of operations which is performed on the Personal Data or on sets of the Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring the Personal Data to third-parties.
Processor: a natural or legal person, public authority, agency or other body which processes personal data on behalf of the Controller.
Records: has the meaning given to it in Clause 12.
Term: this Agreement's term as defined in Clause 10.
1.5 This Agreement is subject to the terms of the Master Agreement and is incorporated into the Master Agreement. Interpretations and defined terms set forth in the Master Agreement apply to the interpretation of this Agreement.
1.6 The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.
1.7 A reference to writing or written includes email.
1.8 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 Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail; and
(c) any of the provisions of this Agreement and the provisions of the Master Agreement, the provisions of this Agreement will prevail.
2. Personal data types and processing purposes
2.1 The Customer and TDS Ultra agree and acknowledge that for the purpose of the Data Protection Legislation:
(a) the Customer is the Controller and TDS Ultra is the Processor.
(b) the Customer retains control of the Personal Data and remains responsible for its compliance obligations under the Data Protection Legislation, including but not limited to, providing any required notices and obtaining any required consents, and for the written processing instructions it gives to TDS Ultra.
(c) the Main Agreement shall describe the subject matter, duration, nature and purpose of the processing and the Personal Data categories and Data Subject types in respect of which TDS Ultra may process the Personal Data to fulfil the Business Purposes.
3. Provider's obligations
3.1 TDS Ultra 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. TDS Ultra 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. TDS Ultra must promptly notify the Customer if, in its opinion, the Customer's instructions do not comply with the Data Protection Legislation.
3.2 TDS Ultra must comply promptly with any Customer written instructions requiring TDS Ultra to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
3.3 TDS Ultra will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third-parties unless the Customer or this Agreement specifically authorises the disclosure, or as required by domestic law, court or regulator (including the Commissioner). If a domestic law, court or regulator (including the Commissioner) requires TDS Ultra to process or disclose the Personal Data to a third-party, TDS Ultra must first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the domestic law prohibits the giving of such notice.
3.4 TDS Ultra will reasonably assist the Customer, at no additional cost to the Customer, with meeting the Customer's compliance obligations under the Data Protection Legislation, taking into account the nature of TDS Ultra's processing and the information available to TDS Ultra, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Commissioner under the Data Protection Legislation.
3.5 TDS Ultra must notify the Customer promptly of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting TDS Ultra's performance of the Master Agreement or this Agreement.
3.6 TDS Ultra will only collect Personal Data for the Customer using a notice or method that the Customer approves in writing, which contains an approved data privacy notice informing the Data Subject of the Customer's identity, the purpose or purposes for which their Personal Data will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing. TDS Ultra will not modify or alter the notice in any way without the Customer's written consent.
4. Provider's employees
4.1 TDS Ultra will ensure that all of its employees:
(a) are informed of the confidential nature of the Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Personal Data;
(b) have undertaken training on the Data Protection Legislation and how it relates to their handling of the Personal Data and how it applies to their particular duties; and
(c) are aware both of TDS Ultra's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
5.1 TDS Ultra must at all times implement appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.
5.2 TDS Ultra must 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 the security measures.
6. Personal data breach
6.1 TDS Ultra will without undue delay notify the Customer in writing if it becomes aware of:
(a) the loss, unintended destruction or damage, corruption, or unusability of part or all of the Personal Data. TDS Ultra will restore such Personal Data at its own expense as soon as possible.
(b) any accidental, unauthorised or unlawful processing of the Personal Data; or
(c) any Personal Data Breach.
6.2 Where TDS Ultra becomes aware of (a), (b) and/or (c) above, it will, without undue delay, also provide the Customer with the following written information:
(a) description of the nature of (a), (b) and/or (c), including the categories of in-scope Personal Data and approximate number of both Data Subjects and the Personal Data records concerned;
(b) the likely consequences; and
(c) a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.
6.3 Immediately following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, TDS Ultra will reasonably co-operate with the Customer at no additional cost to the Customer, in the Customer's handling of the matter, including but not limited to:
(a) assisting with any investigation;
(b) providing the Customer with physical access to any facilities and operations affected;
(c) facilitating interviews with TDS Ultra's employees, former employees and others involved in the matter including, but not limited to, its officers and directors;
(d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and
(e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or accidental, unauthorised or unlawful Personal Data processing.
6.4 TDS Ultra will not inform any third-party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Customer's written consent, except when required to do so by domestic law.
6.5 TDS Ultra agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Customer's 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 TDS Ultra will cover all reasonable expenses associated with the performance of the obligations under clause 6.1 to clause 6.3 unless the matter arose from the Customer's specific written instructions, negligence, wilful default or breach of this Agreement, in which case the Customer will cover all reasonable expenses.
6.7 TDS Ultra will also reimburse the Customer for actual reasonable expenses that the Customer incurs when responding to an incident of accidental, unauthorised or unlawful processing and/or a Personal Data Breach to the extent that TDS Ultra caused such, including all costs of notice and any remedy as set out in Clause 6.5.
7. Cross-border transfers of personal data
8.1 TDS Ultra may only authorise a third-party (subcontractor) to process the Personal Data if:
(a) TDS Ultra 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 the relevant excerpts from such contracts;
(b) TDS Ultra maintains control over all of the Personal Data it entrusts to the subcontractor; and
(c) the subcontractor's contract terminates automatically on termination of this Agreement for any reason.
8.2 On request TDS Ultra must list all approved subcontractors in Annex A and include any subcontractor's name and location and the contact information for the person responsible for privacy and data protection compliance[SA2] .
9. Complaints, data subject requests and third-party rights
9.1 TDS Ultra must, at no additional cost to the Customer, 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:
(a) the rights of Data Subjects under the Data Protection Legislation, including, but not limited to, subject access rights, the rights to rectify, port and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and
(b) information or assessment notices served on the Customer by the Commissioner under the Data Protection Legislation.
9.2 TDS Ultra must notify the Customer immediately in writing 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.
9.3 TDS Ultra must notify the Customer within 7 days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Legislation.
9.4 TDS Ultra will give the Customer, at no additional cost to the Customer, its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
9.5 TDS Ultra must not disclose the Personal Data to any Data Subject or to a third-party other than in accordance with the Customer's written instructions, or as required by domestic [or EU] law.
10. Term and termination
10.1 This Agreement will remain in full force and effect so long as:
(a) the Master Agreement remains in effect; or
(b) TDS Ultra retains any of the Personal Data related to the Master Agreement in its possession or control (Term).
10.2 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 the Personal Data will remain in full force and effect.
10.3 If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Master Agreement obligations, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements.
11. Data return and destruction
11.1 At the Customer's request, TDS Ultra will give the Customer, or a third-party nominated in writing by the Customer, a copy of or access to all or part of the Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.
11.2 On termination of the Master Agreement for any reason or expiry of its term, TDS Ultra will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control.
11.3 TDS Ultra may during and after the termination of this Data Processing Agreement use and disclose anonymised analytical data derived from the Protected Data (Anonymised Data) to third parties without the consent of the Customer.
11.4 If any law, regulation, or government or regulatory body requires TDS Ultra to retain any documents, materials or Personal Data that TDS Ultra would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for such retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.
12.1 TDS Ultra will keep detailed, accurate and up-to-date written records regarding any processing of the Personal Data, including but not limited to, the access, control and security of the Personal Data, subcontractors, the processing purposes, categories of processing, and a general description of the technical and organisational security measures referred to in Clause 5.1 (Records).
12.2 TDS Ultra will ensure that the Records are sufficient to enable the Customer to verify TDS Ultra's compliance with its obligations under this Agreement and the Data Protection Legislation and TDS Ultra will provide the Customer with copies of the Records upon request.
12.3 The Customer and TDS Ultra will review the information listed in the Annexes to this Agreement to confirm its current accuracy and update it when required to reflect current practices.
13.1 TDS Ultra will permit the Customer and its third-party representatives to audit TDS Ultra's compliance with its Agreement obligations, on at least 14 days' notice, during the Term. TDS Ultra will give the Customer and its third-party representatives all necessary assistance to conduct such audits at no additional cost to the Customer.
13.2 If a Personal Data Breach occurs or is occurring, or TDS Ultra becomes aware of a breach of any of its obligations under this Agreement or any of the Data Protection Legislation, TDS Ultra will:
(a) promptly conduct its 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 the Customer with a copy of the written audit report; and
(d) remedy any deficiencies identified by the audit within 28 days.
13.3 At least once a year, TDS Ultra 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.[SA3]
13.4 TDS Ultra will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by TDS Ultra's management.
14.1 TDS Ultra warrants and represents that:
(a) it and anyone operating on its behalf will process the Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;
(b) it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Master Agreement's contracted services; and
(c) considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the accidental, unauthorised or unlawful processing of Personal Data and the loss or damage to, the Personal Data, and ensure a level of security appropriate to:
(i) the harm that might result from such accidental, unauthorised or unlawful processing and loss or damage;
(ii) the nature of the Personal Data protected; and
(iii) comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in Clause 5.1.
14.2 The Customer warrants and represents that TDS Ultra's expected use of the Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation and that it has all consents and permissions to pass any Personal Data to TDS Ultra.
15.1 TDS Ultra will indemnify the Customer against loss or damage suffered or incurred by the Customer as a result of or arising out of any breach of TDS Ultra’s obligations under this Data Processing Agreement. TDS Ultra’s liability under this Data Processing Agreement shall not however exceed the subscription fees paid by the Customer to TDS Ultra in the preceding 6 months for the relevant services as part of the Services under this Data Processing Agreement or Main Agreement and shall in any event be capped at the maximum liability set out in the Main Agreement.
15.2 Neither party shall be liable to the other for loss of profits, sales or business, agreements or contracts; anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or information; loss or damage to premises, installation or reinstallation costs, or any indirect or consequential loss.
THIS DATA PROCESSING AGREEMENT IS AGREED AND ENTERED INTO BY TDS ULTRA AND THE CUSTOMER ON THE DATE OF THE MAIN AGREEMENT.
Reviewed by the TDS Ultra ISMS Committee March 2023