Data Processing Addendum

Where applicable, this Data Processing Addendum is hereby incorporated in the Flexibility Pathway Terms of Service (the “General Terms”), found at www.flexibilitypathway.org.uk/legal/terms, unless Customer has entered into a superseding written agreement with Flexibility Pathway, in which case, it forms a part of such written agreement. All capitalized terms not defined herein shall have the meaning set forth in the General Terms. Unless Customer has a superseding written agreement with Flexibility Pathway, Flexibility Pathway may amend this Data Processing Addendum from time to time on its Website, as its business evolves. Any revisions will become effective on the date Flexibility Pathway publishes the changes. Customer can review the most current version of the Data Processing Addendum at any time by visiting this page. If Customer uses the Services after the effective date of any changes, that use will constitute the acceptance of the revised Data Processing Addendum.

DEFINITIONS AND INTERPRETATION

The following capitalized terms shall have the meaning ascribed to them below:

(i) “ Data Controller” has the meaning set out in GDPR;
(ii) “ Data Processor” has the meaning set out in GDPR;
(iii) “ Data Protection Regulator” means the applicable supervisory authority with jurisdiction over either party, and in each case any successor body from time to time;
(iv) “ Data Subject” has the meaning set out in GDPR;
(v) “ Privacy Laws” means all applicable data protection and privacy legislation, regulations and guidance governing the protection of Personal Information including but not limited to Regulation (EU) 2016/679 (the “ General Data Protection Regulation” or “ GDPR”); and
(vi) “ Process”, “ Processing” or “ Processed” have the meaning set out in GDPR.

PROTECTION OF PERSONAL INFORMATION

1. Supersedence. This Data Processing Addendum shall supersede any and all provisions of the General Terms inconsistent herewith.
2. Data Controller and Data Processor. The Parties acknowledge that Flexibility Pathway is both the Data Controller and the Data Processor of the Customer Personal Information. Flexibility Pathway will Process Personal Information in accordance with Section 3 of this Data Processing Addendum.
3. Flexibility Pathway as Data Controller. Flexibility Pathway warrants that the Customer Personal Information has been obtained fairly and lawfully and, in all respects in compliance with the Privacy Laws.
4. Flexibility Pathway’s Obligations as Data Processor. Flexibility Pathway shall:

1. Process the Customer Personal Information only in accordance with Section 3 of this Data Processing Addendum and any other reasonable documented instructions as provided by the Customer to Flexibility Pathway from time to time (“Instructions”), including with regard to transfers of Customer Personal Information to a third country, save where:
   1. such Instructions are unlawful;
    2. such Instructions would cause Flexibility Pathway to breach its own obligations under Privacy Laws or the General Terms or any other agreement with a third party;
    3. Flexibility Pathway is under a legal obligation to Process the Customer Personal Information, in which case Flexibility Pathway shall inform the Customer of the legal obligation, except to the extent the law prohibits it from doing so; and/or
    4. such Instruction delays or prevents performance of the Services.
2. inform the Customer if, in its opinion, an Instruction received from the Customer infringes the Privacy Laws;
3. ensure that all Flexibility Pathway Users and personnel who are involved in the Processing of Customer Personal Information have committed themselves to confidentiality or are under statutory obligations of confidentiality;
4. not provide any new third party, with access to the Customer Personal Information or sub-contract any of its obligations under the General Terms that involve Processing Customer Personal Information without noticing in advance the Customer and/or publishing the changes in this Data Processing Addendum on the Website. The Customer hereby approves those third parties listed below, or any further third party that is either a Privacy Shield certified entity or that is compliant with GDPR requirements regarding transfers of Customer Personal Information to a third country (the “Subprocessors”):
   1. Amazon AWS. Flexibility Pathway’s internal database and servers are hosted in Amazon AWS data centers within the London Region within the United Kingdom.
    2. Send Grid. Flexibility Pathway’s external email provider is certified under the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework.
    3. Stripe. Flexibility Pathway’s external payment provider is certified under the EU-U.S. Privacy Shield Framework and the Swiss-U.S.  Privacy Shield Framework.
5. ensure that any sub-contract entered into by Flexibility Pathway (where Customer Personal Information is Processed by a Subprocessor) contains provisions which comply with Privacy Laws and in any event are no less onerous than those imposed under Section 2 of this Data Processing Addendum, and where a Subprocessor fails to fulfil its data protection obligations under GDPR, Flexibility Pathway shall remain liable to Customer for the performance of that Subprocessor’s obligations;
6. implement and maintain appropriate technical and organizational security measures to protect against unauthorized or unlawful Processing of the Customer Personal Information and against accidental loss, disclosure or destruction of, or damage to, the Customer Personal Information, taking into account the state of the art, costs of implementation and nature, scope, context and purposes of Processing, as described in the Privacy Policy, found at www.flexibilitypathway.org.uk/legal/privacy, and including:
    1. the anonymization, pseudonymization and/or encryption of Customer Personal Information;
    2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
    3. the ability to restore the availability and access to Customer Personal Information in a timely manner in the event of a physical or technical incident; and
    4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.
7. taking into account the nature of the Processing, assist the Customer (at the Customer’s cost) by appropriate technical and organizational measures, to enable the Customer to comply with its obligations under Privacy Laws in responding to requests from Data Subjects (insofar as this is possible);
8. assist the Customer (at the Customer’s cost), to comply with the following obligations under the GDPR, taking into account the nature of Processing and information available to Flexibility Pathway, including:
    1. notification and assistance to Customer without undue delay, in accordance with the provision set forth in Section 9 of the Privacy Policy, and notification to the Data Protection Regulator and Data Subjects of a breach of security which leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Information transmitted, stored or otherwise. Processed; and
    2. the Customer’s obligations to carry out data protection impact assessments and any subsequent consultation with the Data Protection Regulator;
9. make available to Customer or an independent third party auditor mandated by the Customer (but not being a competitor of Flexibility Pathway), at the Customer’s reasonable cost, to a maximum of once a year or when a breach of Customer Personal Information is reasonably suspected, all reasonable information that Flexibility Pathway deems necessary to demonstrate compliance with the obligations imposed on Flexibility Pathway under Section 2 of this Data Processing Addendum, and allow for and contribute to audits, including inspections for the sole purpose of demonstrating such compliance; and
10. unless required by law, at Customer’s request following termination or expiry of the General Terms for whatever reason, at the Customer’s reasonable cost, securely delete all of the Customer Personal Information.