THIS AGREEMENT is made BETWEEN:
(1) The School named on the Order Form (the “Controller”)
(2) Optimum Reports Limited (incorporated in England & Wales, Company Number 05619428 whose registered office is at Unit 1 Wharfe House Richmond Business Park Doncaster DN4 5NL (the “Processor”).
(A) The Controller processes Personal Data in connection with its business activities;
(B) The Processor processes Personal Data on behalf of other businesses and organisations;
(C) The Controller wishes to engage the services of the Processor to process personal data on its behalf;.
(D) Article 17(2) of the Data Protection Directive 95/46/EC (as hereinafter defined) provides that, where processing of personal data is carried out by a processor on behalf of a data controller the controller must choose a processor providing sufficient guarantees in respect of the technical security measures and organisational measures governing the processing to be carried out, and must ensure compliance with those measures;
(E) Articles 17(3) and 17(4) of the Data Protection Directive require that where processing is carried out by a processor on behalf of a controller such processing shall be governed by a contract or legal act binding the processor to the controller stipulating, in particular, that the processor shall act only on instructions from the controller and shall comply with the technical and organisational measures required under the appropriate national law to protect personal data against accidental or unlawful destruction or accidental loss, alternation, unauthorised disclosure or access and against all other unlawful forms of processing;
(F) In compliance with the above-mentioned provisions of Article 17 of the Data Protection Directive the Controller and Processor wish to enter into this processing security Agreement.
THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Agreement the following words and phrases shall have the following meanings, unless inconsistent with the context or as otherwise specified:
“Data Protection Directive” shall mean Directive 95/46/EC of the European Parliament and Council of 24th October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
“national law” shall mean the law of England and Wales, in which the Processor is established;
“the Act” shall mean the Data Protection Act 1998
“ICO” shall mean the UK Information Commissioner’s Office
“personal data” shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical,
physiological, mental, economic cultural or social identity;
“processing of personal data” shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alternation, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
“sub-contract” and “sub-contracting” shall mean the process by which either party arranges for a third party to carry out its obligations under this Agreement and “Sub Contractor” shall mean the
party to whom the obligations are subcontracted; and
“Technical and organisational security measures” shall mean measures to protect personal data against accidental or unlawful destruction or accidental loss, alternation, unauthorised disclosure or access and against all other unlawful forms of processing.
2.1 In consideration of the Controller engaging the services of the processor to process personal data on its behalf the Processor shall comply with the security, confidentiality and other obligations imposed on it under this Agreement.
3. SECURITY OBLIGATIONS OF THE PROCESSOR
3.1 The Processor shall only carry out those actions in respect of the personal data processed on behalf of the Controller as are expressly authorised by the Controller.
3.2 The Processor shall take such Technical and Organisational Security Measures as are required under its own national law to protect personal data processed by the Processor on behalf of the Controller against unlawful forms of processing. Such Technical and Organisational measures shall include, as a minimum standard of protection, compliance with the legal and practical security requirements set out in Appendix 1 of this Agreement.
4. CONDITIONS FOR PROCESSING
Under the Act, The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions.
5. SERVICE TO BE PROVIDED
5.1 The Processor will supply a data tracking, data analysis, reporting and target setting service for the school.
6. DATA TO BE SENT TO THE PROCESSOR
For all pupils on the roll the school will provide the following:
6.1 Data from a Common Transfer File (CTF) including but not limited to UPN, Forename, Surname, Date of Birth, Ethnicity, EAL status, Gender, SEN status, SEN need status, FSM eligibility and Attendance summary.
6.2 Pupil photographs (if held in the Controller’s MIS)
6.3 Additional group information
6.4 Termly and end of year assessment results and targets, including the end of EYFS, KS1 and KS2 statutory results.
6.5 Intervention programmes being accessed by individual pupils
7. PURPOSES AND USE OF DATA
7.1 To track individual pupil progress and attainment, to set individual pupil targets, to analyse the performance of individual pupils and groups of pupils within the school; to measure the impact of intervention programmes and to provide data analysis of all assessment information.
8. TRANSMISSION OF DATA
Both parties will:
8.1 Transfer data in a secure way by using the upload feature in the OTrack website or the Wonde API integration tool (The Wonde Data Handling Agreement can be found here: www.wonde.com/downloads/Wonde%20-%20Data%20Handling%20Agreement.pdf).
8.2 Store all data securely and not share it with any other parties.
8.3 Use all data only for the purposes as defined in this Agreement.
8.4 Not send any data via e-mail
In addition, the processor will:
8.5 Not hold any data as a paper copy unless provided by the school
8.6 Not hold any data on devices, including but not exclusive external storage devices, tablets, laptops and PCs unless provided by the school.
8.7 If any data is provided by the school in the above format, the processor will securely destroy all data on completion of processing the data for its intended purpose.
9. SECURITY OF DATA
9.2 The Processor will only amend, transfer or delete any data provided under the terms of this Agreement on request by the Controller.
9.3 The Processor and the Controller will retain a copy of this agreement. The Processor will issue a copy of the Agreement at the commencement of the Agreement and periodically on each annual renewal of the Agreement.
10. FREEDOM OF INFORMATION ACT REQUESTS
In the event of a request being made of the Controller under the Freedom of Information Act 2000, the processor will assist the Controller in dealing with the request if asked by the Controller.
11. COMPLAINTS AND MISUSE
11.1 In the event of a complaint or allegation of misuse of the data against the Processor, the Controller should investigate the complaint through discussions with the Processor and contact the Local Authority Data Protection Officer for guidance and advice on the matter. In such a case the Processor will contact the ICO for guidance and advice on the matter. The Processor also reserves the right to take legal advice on the matter.
11.2 On occasion where the Processor is in breach of this Agreement the Processor will fully indemnify the Controller in respect of any monetary penalty issued by the ICO and any other claim, loss, liability or costs incurred arising as a result of a breach of this Agreement or as a result of any negligence or breach of the Law of England and Wales.
12.1 The Processor agrees that it shall maintain the personal data processed by the Processor on behalf of the Controller in confidence. In particular, the Processor agrees that, save with the prior written
consent of the Controller, it shall not disclose any personal data supplied to the Processor by, for, or on behalf of, the Controller to any third party.
12.2 The Processor shall not make any use of any personal data supplied to it by the Controller otherwise than in connection with the provision of services to the Controller.
12.3 The obligations in clauses 4.1 above shall continue for a period of five years after the cessation of the provision of services by the Processor to the Controller.
12.4 Nothing in this agreement shall prevent either party from complying with any legal obligation imposed by a regulator or court. Both parties shall however, where possible, discuss together the appropriate response to any request from a regulator or court for disclosure of information.
13.1 The Processor shall not sub-contract any of its rights or obligations under this Agreement without the prior written consent of the Controller.
13.2 Where the Processor, with the consent of the Controller, sub-contracts its obligations under this agreement it shall do so only by way of a written agreement with the Sub-Contractor which imposes the same obligations in relation to the security of the processing on the Sub-Contractor as are imposed on the Processor under this Agreement.
13.3 For the avoidance of doubt, where the Sub-Contractor fails to fulfil its obligations under any subprocessing agreement, the Processor shall remain fully liable to the Controller for the fulfilment of its obligations under this Agreement
14. TERM AND TERMINATION
14.1 This Agreement shall continue in full force and effect for so long as the Processor is processing personal data on behalf of the Controller.
14.2 This Agreement runs from the date stated above to the end of the current academic year. A new Agreement will be issued at the start of each academic year. The Controller can terminate the agreement in writing at any time.
14.3 Within 30 days following termination of this Agreement the Processor shall, at the direction of the Controller, (a) comply with any other agreement made between the parties concerning the return
or destruction of data, or (b) return all personal data passed to the Processor by the Controller for processing, or (c) on receipt of instructions from the Controller, destroy all such data unless prohibited from doing so by any applicable law.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the Law of England and Wales.