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This Data Processing Agreement forms part of the LearnUpon Subscription Agreement (the “Principal Agreement”) entered into by and between LearnUpon and You and is incorporated by reference therein. The services or items provided under the Principal Agreement (“Services”) may include the processing of personal data on Your behalf. The terms “personal data”, “controller”, “processor”, “data subject”, “personal data breach” and “processing” shall have the same meaning as in the EU and UK General Data Protection Regulation 2016/679 (“GDPR”).
Where LearnUpon is engaged as a sub-processor for and on behalf of You where You are acting as a processor, this Data Processing Agreement shall be read as though any reference to controller means processor and any reference to processor means sub-processor.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy under or in connection with this Data Processing Agreement including the EU and UK General Data Protection Regulation 2016/679 (“GDPR”),the UK Data Protection Act 2018 and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time.
"UK Standard Contractual Clauses" means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses in force 21 March 2022 between You and LearnUpon available at https://www.learnupon.com/learnupon-standard-contractual-clauses-uk/
"Restricted transfer" means a transfer which is covered by Chapter V of the UK GDPR;
"Standard Contractual Clauses (Processor-to-Controller)" means the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 between processors and controller (module 4), as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 between You and LearnUpon available at https://www.learnupon.com/learnupon-standard-contractual-clauses-p2c/
"Standard Contractual Clauses (Processor-to-Processor)" means the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 between processors and processors (module 3), as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 between You and LearnUpon available at https://www.learnupon.com/learnupon-standard-contractual-clauses-p2p/.
1. The Parties shall at all times comply with applicable Data Protection Legislation and may take such actions as they, in their sole discretion, deem necessary to comply with Data Protection Legislation.
2. The Parties acknowledge that for the purposes of the Data Protection Legislation, You are the data controller and LearnUpon is the data processor. Annex 1 sets out the scope, nature and purpose of processing by LearnUpon, the duration of the processing, the types of personal data and categories of data subject and the minimum security measures that LearnUpon shall adhere to when processing personal data on your behalf.
3. LearnUpon shall, as a data processor and in relation to personal data that it processes on behalf of You comply with its obligations set out in this clause 3: You shall comply with Your obligations as set out in this clause 3:3.1. LearnUpon shall act only in accordance with this Data Processing Agreement, the Principal Agreement and with Your instructions in relation to the processing of personal data (including instructions in relation to the return or destruction of personal data). In the event that a legal requirement prevents LearnUpon from complying with such instructions or requires LearnUpon to disclose the personal data to a third party LearnUpon shall, unless such legal requirement prohibits it from doing so, inform You of the relevant legal requirement before carrying out the relevant processing activities;
3.2. LearnUpon shall take reasonable steps to ensure the reliability of staff having access to the personal data and that all staff to whom it discloses personal data are made aware that the personal data is confidential information of Yours and subject to this Agreement;
3.3. LearnUpon shall have and maintain technical and organisational measures appropriate to the risks that are presented by the processing, in accordance with Data Protection Legislation, to prevent unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. LearnUpon shall maintain such security measures for as long as it is processing the personal data on Your behalf;
3.4. LearnUpon shall, at Your expense, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR;
3.5. LearnUpon shall, as soon as reasonably practicable, but in no event later than 72 hours upon becoming aware, notify You of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Your personal data (a "Security Breach");
3.6. LearnUpon shall promptly provide You with reasonable cooperation and assistance in respect of the Security Breach and all information in LearnUpon's possession concerning the Security Breach.
3.7. LearnUpon shall, at Your expense, provide reasonable assistance to You in ensuring compliance with Your obligations set out under Articles 32–36 of the GDPR to:
3.7.1. Ensure the security of processing;
3.7.2. Notify the relevant supervisory authority, and any data subject(s), where relevant, of any Security Breach;
3.7.3. Carry out any data protection impact assessments (each a "DPIA") of the impact of the processing on the protection of personal data; and
3.7.4. Consult the relevant supervisory authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by You to mitigate the risk.
3.8. LearnUpon shall, at Your choice, destroy or return all personal data to You at the end of the provision of services relating to processing and, within a reasonable amount of time, delete existing copies unless European Union law or a law of a Member State of the European Union requires the storage of the personal data;
3.9. LearnUpon shall make available to You, at Your expense, all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits. Such audits shall be at Your expense and may include inspections conducted by You or another auditor authorised by You. Such inspections and/or audits shall be agreed in advance with LearnUpon and carried out on reasonable notice, at reasonable intervals and during normal business hours of LearnUpon and upon production of appropriate identity evidencing authority. You undertake to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of LearnUpon’s business and/or damage or injury to LearnUpon’s equipment, premises, personnel;
3.10. You acknowledge and accept that the provision of the LearnUpon Services under the Principal Agreement may require the processing of personal data in countries outside the EEA or the UK from time to time.
3.11. If, in the performance of this DPA and/or the Principal Agreement, LearnUpon transfers any personal data to You or a sub-processor outside of the EEA or the UK to which no specifically approved safeguard(s) for data transfers (as recognized under Data Protection Legislation) and/or a European Commission finding of adequacy applies, the Standard Contractual Clauses (Processor-Controller) will apply with respect to all such transfers to You outside of the EEA and the UK Standard Contractual Clauses will apply for Restricted Transfers outside the UK and the Standard Contractual Clauses (Processor-Processor) shall apply to such transfers to sub-processors outside the EEA and the UK Standard Contractual Clauses will apply for Restricted Transfers outside the UK.
3.12. LearnUpon uses sub-processors for the purposes of providing access to, ongoing support and development of the Platform. LearnUpon maintains a list of all the sub-processors it uses at the following URL: https://www.learnupon.com/subprocessors/, which may be updated from time to time upon thirty days’ notice to You provided by email. You provide your general consent to the use by LearnUpon of these sub-processors. If You have a reasonable objection to any new or replacement sub-processor, You shall notify LearnUpon of such objections in writing within ten (10) days of the notification and the Parties will seek to resolve the matter in good faith. If LearnUpon is able to provide the Services to You in accordance with the Principal Agreement without using the sub-processor and decides in its discretion to do so, then You will have no further rights under this clause in respect of the proposed use of the sub-processor. If LearnUpon requires to use the sub-processor and is unable to satisfy You as to the suitability of the sub-processor or the documentation and protections in place between LearnUpon and the sub-processor within sixty (60) days from Your notification of objections, You may within thirty (30) days of the end of the sixty (60) day period referred to above terminate the Principal Agreement or applicable Order Form only in relation to the Services to which the proposed new sub-processor's processing of personal data relates or would relate by providing written notice to LearnUpon having effect thirty (30) days after receipt by LearnUpon. LearnUpon may use a new or replacement sub-processor whilst the objection procedure in this clause is in process. LearnUpon shall, where it engages a sub-processor for carrying out specific processing activities on behalf of the controller, use reasonable endeavours to ensure that the same data protection obligations as set out in this Data Processing Agreement shall be imposed on that other processor by way of contract or other legal act under European Union law or the laws of a Member State ("Relevant Terms"). LearnUpon shall procure the performance by such sub-processor of the Relevant Terms and shall be directly liable to You for any breach by such person of any of the Relevant Terms. If, in the performance of this DPA and/or the Principal Agreement, LearnUpon permits processing of any personal data by a sub-processor (which shall include without limitation any Affiliates of LearnUpon) located outside of the EEA to which no specifically approved safeguard(s) for data transfers (as recognized under Data Protection Legislation) and/or a European Commission finding of adequacy applies, LearnUpon shall put in place the European Commission's Standard Contractual Clauses as set out in the Annex to Commission Decision 2021/914 for transfer of personal data from the EEA and the UK Standard Contractual Clauses for Restricted Transfers outside the UK to processors established in third countries (Processor-to-Processor).
4. Consents. You warrant and represent that You have obtained and/or have in place, all necessary consents, approvals and/or valid legal basis for the lawful transfer of personal data to LearnUpon for the purposes of this Data Processing Agreement and the provision of services by LearnUpon.
5. Third Party Services. You may choose from time to time to use third party products or services in conjunction with the Services made available to You under the Principal Agreement (“Third Party Services”). If You elect to enable, access, or use such Third Party Services, Your access and use of such Third Party Services is governed solely by the terms and conditions and privacy policies of such Third PartyServices, and LearnUpon does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation their content or the manner in which they handle personal data or any interaction between You and the provider of suchThird Party Services.
6. Obligations under the Principal Agreement. Nothing in this Data Processing Agreement reduces Your obligations under the Principal Agreement in relation to the protection of personal data. In the event of any conflict or inconsistency between this Data Processing Agreement and any Standard Contractual Clauses or the UK Standard Contractual Clauses between the Parties, the Standard Contractual Clauses or the UK Standard Contractual Clauses shall prevail.
7. Order of precedence. Subject to clause 6 above, with regard to the subject matter of this Data Processing Agreement, in the event of inconsistencies between the provisions of this Data Processing Agreement and any other agreements between the Parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this Data Processing Agreement, the provisions of this Data Processing Agreement shall prevail.
8. Severance. Should any provision of this DataProcessing Agreement be invalid or unenforceable, then the remainder of this Data Processing Agreement shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
9. Variation. The Parties may amend, replace or vary the terms of this Data Processing Agreement to reflect any changes in Data Protection Legislation ora new requirement under such law.
10. Miscellaneous. Without prejudice to clauses 17 (Governing Law) and 18 (Choice of Forum and Jurisdiction) of the Standard Contractual Clauses or the UK Standard Contractual Clauses, this Data Processing Agreement shall be governed by and construed in accordance with the laws of the country of territory stipulated for this purpose in the Principal Agreement and each of the parties agrees to submit to the Choice of jurisdiction as stipulated in the Principal Agreement in respect of any claim or matter arising under this Data Processing Agreement.
10.1. For the avoidance of doubt, each reference to the Data Processing Agreement in this Data Processing Agreement means this Data Processing Agreement including its Schedules.
NATURE AND PURPOSE OF PROCESSING
LearnUpon will process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by You in Your use of the Services.
DURATION OF PROCESSING
LearnUpon will process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
CATEGORIES OF DATA SUBJECTS
Subject to the restrictions set forth in the Principal Agreement, You may submit Personal Data to LearnUpon, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
CATEGORIES OF PERSONAL DATA
Subject to the restrictions set forth in the Principal Agreement You may submit Personal Data to LearnUpon, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to the following categories of Personal Data:
SECURITY POLICIES AND MANAGEMENT
LearnUpon shall ensure senior management assigns security responsibility and reviews the implementation of security requirements through an organization-wide security policy (“Information Security Policy”). The Information Security Policy shall include a data classification system, which shall protect Your Confidential Information (“Confidential Information”) with at least the same level of protection that LearnUpon uses for similarly classified information. These security requirements, the Information Security Policy, and related guidelines shall be communicated to all LearnUpon employees and authorized subcontractors. LearnUpon shall also communicate any additional security requirements required by You. LearnUpon shall conduct/review annual security risk assessments as part of its normal business operations and as part of its incident response process as described below, and shall modify its security related processes, procedures, and guidelines based on the findings in such security risk assessments.
LearnUpon’s personnel, its subcontractors, and external service providers shall sign non-disclosure agreements with terms at least as restrictive as those contained in this Agreement with LearnUpon, prior to being given access to Your Confidential Information. LearnUpon shall ensure there is an appropriate exit procedure for LearnUpon personnel, which includes disabling user access and returning assets when terminating employment or ending relationships.
LearnUpon shall conduct information security training during employee induction and at least once per year thereafter to all existing employees. LearnUpon shall ensure that emphasis is given to the proper handling of Your Confidential Information. LearnUpon shall have a policy to define acceptable usage of LearnUpon systems for email, messaging systems, internet access, etc.
SECURITY INCIDENT RESPONSE AND BUSINESS CONTINUITY
LearnUpon shall maintain a 24/7 security incident response plan (“Plan”) that complies with applicable laws and relevant industry standards applicable to the services and represents and warrants that it complies with Plan procedures. LearnUpon shall notify You in the event of a breach of security within 72 hours upon becoming aware of the incident unless directed otherwise by an appropriate/authorised law enforcement agency. LearnUpon will maintain a disaster identification and recovery system to deal with business continuity in the case of a security incident.
LearnUpon shall implement and maintain reasonable and appropriate access controls to protect Your Confidential Information against unauthorized or accidental access, use, disclosure, deletion, loss, or alteration in a manner that at minimum meets industry standards applicable to the Services. Measures will include but are not limited to:
Logical Segmentation. LearnUpon shall maintain Your Confidential Information so that it is logically segmented from LearnUpon and other customers’ information so that only authorized users (i.e., employees, subcontractors or other external service providers) can access Your Confidential Information.
Physical Access Controls. LearnUpon shall take reasonable measures to ensure physical and logical security controls to mitigate the risk of unauthorised intrusion into LearnUpon’s premises;
System Access Controls. LearnUpon shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall vary based on the nature of processing undertaken and may include:
Data Access Controls. LearnUpon shall take reasonable measures to ensure that access to the Confidential Information under its control is restricted to those individuals whom are explicitly authorised to access such Confidential Information. Access shall be limited to those with a business need for such access and to those access privileges required to fulfil that need only. Access shall be assigned using unique logon credentials to ensure accountability is maintained.
Transmission Controls. LearnUpon shall take reasonable measures to ensure secure transfer of Personal Data by means of data transmission. These controls may include:
Data Backup. LearnUpon shall take reasonable measures to ensure a back-up of the databases in the Service are taken on a regular basis and to restore the availability and access to Confidential Information in a timely manner in the event of a physical or technical incident (including, without limitation, measures relating to business continuity and disaster recovery) if required.