Data Processing Addendum

Updated 16th May 2019

This Data Processing Addendum (“DPA”) forms part of the General Terms and Conditions of Business (the “Conditions” located at https://www.luminalearning.com/luminaterms) and the Agreement between “Lumina Learning“ (Lumina Learning Limited, registered in England and Wales, Company Number 07021544) and the individual or organisation that is party to the Agreement (“You, Your”).

 

1.               Overview

1.1.           This DPA sets out how the parties use Personal Data and Lumina Learning’s obligations where acting as Data Processor.

1.2.           This DPA shall be interpreted in accordance with the Conditions, save that in the case of a conflict between the Conditions and this DPA, the DPA shall prevail.

 

2.               Definitions

2.1.           In this DPA the following words or phrases have the meaning set out alongside them, save to the extent that the context clearly indicates otherwise. Other capitalised terms in this DPA shall have the specific meaning as defined in this DPA or, where this DPA contains no definition, as defined in the Conditions.

2.1.1.      Data Controller - means the individual or legal entity who determines the purposes and means of the processing of Personal Data;

2.1.2.      Data Processor - means the natural or legal person that processes Personal Data on behalf of the Data Controller;

2.1.3.      Data Subject - means any natural person about whom Personal Data is gathered;

2.1.4.      EU Data Protection Law - means the legal framework of the European Union (EU) governing the treatment of Personal Data, including Regulation (EU) 2016/679 (the General Data Protection Regulation), associated national implementing laws, official guidelines and other applicable laws as amended;

2.1.5.      Participant - means a Data Subject with whom You interact when providing the Practitioner Services;

2.1.6.      Participant Data - means data, including Personal Data, You gather when providing Practitioner Services including data about Participants;

2.1.7.      Personal Data - means any information relating to an identified or identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an 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 that natural person;

2.1.8.      Practitioner Data - means Personal Data gathered by Lumina Learning and the Partner about You;

2.1.1.      Standard Contractual Clauses - means the standard contractual clauses for the transfer of personal data to processors established in third countries approved by the European Commission in the decision of 5 February 2010 under Directive 95/46/EC;

2.1.1.      User Data - means Personal Data gathered by Lumina Learning about any Data Subject that uses the System.

 

3.               Roles and Subject Matter

3.1.           In relation to Participant Data, You are Data Controller and Lumina Learning is Data Processor. Details of this processing are as follows:

3.1.1.      Subject matter of processing: the provision of Services to You by Lumina Learning under the Agreement through Lumina Learning’s processing of Participant Data.

3.1.2.      Duration of processing: for the duration of the Agreement.

3.1.3.      Nature and purpose of processing: to enable Lumina Learning to provide You with the Services and to facilitate Your provision of the Practitioner Services to Customers and Participants.

3.1.4.      Type of personal data: Participant Data.

3.1.4.      Categories of data subjects: Participants.

3.2.           In relation to User Data, Lumina Learning is Data Controller and acts in accordance with the General Privacy Notice located at https://www.luminalearning.com/generalprivacynotice.

3.3.           You shall share with Lumina Learning a copy of Participant Data and this copy shall be controlled by Lumina Learning and form part of User Data. You warrant that you have a lawful basis for sharing this data.

3.4.           In relation to Practitioner Data, Lumina Learning and the Partner are Data Controllers and shall act in accordance with the Practitioner Privacy Notice located at https://www.luminalearning.com/practitionerprivacynotice.

 

4.               Your Obligations

4.1.           Where You are Data Controller You shall:

4.1.1.      Comply with all relevant EU Data Protection Laws; and

4.1.2.      Implement appropriate technical and organisation measures to ensure an appropriate level of security for Personal Data.

 

5.               Lumina Learning’s Obligations

5.1.           Where Lumina Learning is Data Controller or Data Processor it shall:

5.1.1.      Comply with all relevant EU Data Protection Laws;

5.1.2.      Implement appropriate technical and organisation measures to ensure an appropriate level of security for Personal Data, including by implementing reasonable measures to keep Personal Data safe from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access;

5.1.3.      Ensure that persons authorised to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and

5.1.4.      Ensure that persons authorised to process Personal Data have committed themselves to implement appropriate technical and organisation measures to ensure an appropriate level of security for Personal Data.

5.2.           Where Lumina Learning is Data Processor it shall:

5.2.1.      Process Personal Data only on documented instructions from You. Lumina Learning may also handle data in accordance with applicable law to which it is subject, provided that it undertakes to inform You of that legal requirement before processing takes place, unless that law prohibits such information on important grounds of public interest;

5.2.2.      Transfer Personal Data outside the EEA only with Your instruction and only where satisfied that adequate safeguards are in place, or if the transfer is required by law;

5.2.3.      The parties agree that this DPA serves as documentation of Your instructions regarding Lumina Learning’s processing of Participant Data and is the only basis on which Lumina Learning shall act. Any further instructions must be agreed between the parties.

5.2.4.      At Your choice, delete or return all Personal Data to You after the purposes for processing are complete and delete existing copies, unless applicable law requires storage of the Personal Data;

5.2.5.      Notify You as soon as possible once becoming aware of a Personal Data breach and cooperate in implementing appropriate remedial action; and

5.2.6.      Notify You as soon as possible once becoming aware of a complaint relating to the processing.

5.3.           Where Lumina Learning is Data Processor it shall assist You, where reasonably possible in relation to the processing, to comply with Your obligations established by EU Data Protection Law to:

5.3.1.      Implement appropriate technical and organisation measures to ensure an appropriate level of security for Personal Data;

5.3.2.      Report a Personal Data breach to a supervisory authority;

5.3.3.      Communicate a Personal Data breach to the Data Subject, where required by law;

5.3.4.      Conduct data protection impact assessments; and

5.3.5.      Respond to Data Subjects to exercise their Data Subject access rights, including their right to access, rectify, port and in some circumstances erase their Personal Data.

5.4.           Lumina Learning shall not carry out Your instructions that it believes are incompatible with EU Data Protection Laws and shall notify You immediately if it believes such is the case.

 

6.               Processing, Sub-processing and International Transfers

6.1.           In relation to Participant Data You hereby give Lumina Learning general written instruction to:

6.1.1.      Process Participant Data in any manner reasonably required to achieve the purposes of processing;

6.1.2.      Engage sub-processors to conduct its obligations including processing under the Agreement; and

6.1.3.      Transfer Participant Data outside the European Economic Area (EEA) where reasonably necessary to achieve the purposes of processing.

6.2.           You agree to Lumina Learning’s continued use of sub-processors engaged prior to 25th May 2018.

6.3.           Lumina Learning shall inform You in advance of any intended changes concerning the addition or replacement of sub-processors. To object to such changes You must inform Lumina Learning within a reasonable period detailing the reasons for Your objection and the parties shall use their best endeavours to find a mutually satisfactory alternative sub-processor. If it is not possible to reach agreement, either party may terminate the Agreement by providing notice.

6.4.           Lumina Learning is established in the United Kingdom. If the United Kingdom ceases to be a member of the European Union and becomes a third country and if the United Kingdom is not subject to an EU Commission adequacy decision or other equivalent legal status and if Lumina Learning does not enrol in a legally approved mechanism that provides adequate safeguards for Personal Data, Lumina Learning shall as a processor established in a third country be bound by the Standard Contractual Clauses detailed in the Annex to this DPA.

6.5.           Where there is a conflict between the Standard Contractual Clauses and any other part of this DPA or the Agreement, the Standard Contractual Clauses shall prevail.

 

7.               Audit

7.1.           Where Lumina Learning is Data Processor it shall make available to You information necessary to demonstrate compliance with obligations laid down by EU Data Protection Law and at Your sole cost allow You to conduct audits at a mutually agreed time.

7.2.           Where Lumina Learning is Data Processor it shall make available to You a copy of Personal Data held under this agreement upon request.

 

8.               Term and Termination

8.1.           This DPA shall remain in force for the duration of the Agreement or where Personal Data is held beyond the termination of the Agreement until Personal Data it is returned to You or erased.

 

 

Annex - Standard Contractual Clauses (Processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

 

Name of the data exporting organisation:

the individual or organisation that is party to the Agreement (“You, Your”).

(the data exporter)

 

And

 

Name of the data importing organisation:

Lumina Learning Limited
Address: Alderwick James and Co, 4 The Sanctuary, 23 Oakhill Grove, Surbiton, KT6 6DU, United Kingdom
Tel. +44 20 3588 0270
e-mail: legal@luminalearning.com

(the data exporter)

 

each a ‘party’; together ‘the parties’,

 

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

 

Clause 1
Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

Clause 2
Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.;

 

Clause 3
Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

 

Clause 4
Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

 

Clause 5
Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(ii) any accidental or unauthorised access; and

(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

 

Clause 6
Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

 

Clause 7
Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

 

Clause 8
Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

 

Clause 9
Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

Clause 10
Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

 

Clause 11
Sub-processing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses ( 1 ). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

 

Clause 12
Obligation after the termination of personal data-processing services

1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

 

Appendix 1
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter
The data exporter is:
The entity defined as “You, Your” in this DPA.

Data importer
The data importer is:
Lumina Learning Limited, provider of psychometric testing and business consultancy services.

Data subjects
The personal data transferred concern the following categories of data subjects:
Data subjects are described in section 3.1 of this DPA.

Categories of data
The personal data transferred concern the following categories of data:
The categories of personal data transferred are described in section 3.1 of this DPA.

Processing operations
The personal data transferred will be subject to the following basic processing activities:
Processing activities are described in section 3.1 of this DPA.

 

Appendix 2
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
A description of the technical and organisational security measures implemented are contained within Lumina Learning’s InfoSec Policy, the latest copy of which is available on request.