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This Agreement is dated .
1. PARTIES
A. Patients Know Best (“PKB”); and
B. The Providers (listed in Schedule 4), (“Providers”),each a “Party” and together the “Parties”.
2. BACKGROUND
A. The Lead Controller has contracted with PKB under the Commissioning Contract to provide patients with access to and some control of their health data. The PKB platform facilitates patient access to their health data contributed by the Providers and facilitates the patient to add information which may be viewed by their health and care providers and other people of their choosing. The Providers are all organisations with a legal duty to provide free at the point of delivery care to individuals (as part of the NHS), to which PKB supports the facilitation of this duty.
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I. Where PKB are Joint Controllers with the Providers, Parts 1,2,4 and the Schedules shall apply.
3. DEFINITIONS AND INTERPRETATION
3.1 Unless specifically provided for in this Agreement, the following terms shall have the following meanings:
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3.3.1 the main body of this Agreement and the Schedules, except as expressly stated otherwise, the main body of this Agreement shall prevail to the extent of such conflict.
4. SCOPE AND APPLICATION
4.1 This Agreement applies to the processing of Personal Data on the PKB Platform. Any reference in this Agreement to PKB Data shall be interpreted as a reference to any Personal Data held on the PKB Platform.
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4.4 Where PKB Data under this Agreement is accessed by another Provider organisation, that organisation shall be considered a Third Party under Article 4 of UK GDPR.
5. COMMENCEMENT AND DURATION
5.1 This Agreement shall commence on the date set out at the top of it (the “Commencement Date”) and shall continue in accordance with its terms.
6. PATIENT AND REGULATORY ENGAGEMENT
6.1 Prior to the commencement of Processing, in respect of the activities contemplated by this Agreement, the Parties shall cooperate with each other to:
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6.2 Following the commencement of processing activity, the Providers will continue to promote the proposed processing activity in accordance with their duty of transparency.
7. AGREED PURPOSES
7.1 The Parties agree to only Process PKB Data under this Agreement for:
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PART 2 - APPLICABLE WHERE A JOINT CONTROLLER RELATIONSHIP EXISTS
8. LAWFUL BASES FOR PROCESSING AND CLASSIFICATION OF PARTIES
8.1 The lawful bases for each Party’s Processing of Personal Data and the classification of the Parties for the purposes of Data Protection Law under this Agreement is set out in Schedule 2.
9. PROVIDER’S RESPONSIBILITY FOR PATIENT-FACING COMMUNICATIONS.
9.1 Generally
9.1.1 Except where expressly stated in this Agreement or agreed by the Parties in writing, Providers shall be responsible for all communications with Data Subjects in relation to Personal Data covered by this Part 2, prior to the creation of the Patient Account:
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9.2.1.4 Providers shall keep PKB reasonably informed as to the status and resolution of the Data Subject Access Request.
10. DATA MINIMISATION (INCLUDING OPT-OUT) AND PSEUDONYMISATION
10.1 Taking into the cost of implementation and the nature, scope, context and purposes of Processing as well as the risks of varying likelihood and severity for rights and freedoms of Data Subjects each Party shall implement appropriate technical and organisational measures, including pseudonymisation, to ensure that the use of Personal Data in relation to the processing is minimised.
10.2 Each Party shall periodically review data minimisation measures implemented in accordance with this clause 10, and may agree with the other Party further steps to be taken to ensure the minimisation of Personal Data as may be required by Data Protection Law and in any case no less than every three years.
11. GENERAL OBLIGATIONS OF THE PARTIES
11.1 Each Party shall implement appropriate technical and organisational measures to protect Personal Data against unauthorised or accidental access, loss, alteration, disclosure, destruction or other unauthorised or unlawful forms of Processing (such measures may include, where appropriate, the pseudonymisation and encryption of Personal Data covered by this Part 2 and other measures referred to in Article 32(1) of the GDPR).
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11.11 The Parties shall keep this Agreement under review and either Party may request a change to this Agreement as may be reasonably required to comply with Data Protection Law. Upon receipt of such a request from a Party, the Parties shall discuss and consider such request in good faith and do all things reasonably necessary to comply with Data Protection Law, including varying this Agreement or entering into any subsequent agreements.
12. JOINT CONTROLLERS
12.1 Each Party acknowledges and agrees that there is a common objective in respect of the Processing and are Joint Controllers for the purpose of Data Protection Law in respect of such Processing.
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Compliance obligation | Responsible Party |
Publicise a contact point for Data Subjects to facilitate the exercise of their rights in relation to the Processing under this Agreement. | Providers |
Upon request, make available to Data Subjects a summary of the arrangement between the Parties under this Agreement, such summary to be in a form agreed by the Parties. | Providers and PKB |
Maintaining transparency material online to meet A13 and A14 requirements. | Providers and PKB |
13. USE OF PROCESSORS
13.1 Where PKB uses a Processor to Process Personal Data covered by this Part 2 a, PKB shall:
13.2 provide Providers with such information regarding such processors as Providers may reasonably request. For clarity, PKB shall not be required to provide Providers with details of any commercial terms between PKB and any Processor;
13.3 ensure that such Processing is subject to an agreement as required by Article 28(3) of the GDPR; and
13.4 where Providers have provided their prior written approval to the international transfer of Personal Data covered by this Part 2 conduct such international transfer in accordance with Data Protection Law.
14. COMBINATION WITH OTHER DATA
14.1 Providers acknowledge and agree that PKB may combine Providers Data to external sources of health data (including other Trusts, patient inputted data and third-party application data) with the objective of increasing the quality and breadth of the Personal Data covered by this Part 2.
15. DATA RETENTION AND DELETION
15.1 The Parties shall not retain or Process Personal Data covered by this Part 2 under this Agreement for longer than is necessary to carry out the Agreed Purposes.
PART 3 – APPLICABLE WHERE PKB IS A PROCESSOR
16. The Parties acknowledge that for the purposes of the Data Protection Legislation that the Providers are the Controller and PKB is the Processor. The only processing that the Processor is authorised to do is set out in Schedule 1, which is attached to and forms part of this agreement, by the Controller and may not be determined by the Processor.
16.1 The Processor shall notify the Controller within 72 hours if it considers that any of the Controller’s instructions infringe Data Protection Legislation.
16.2 The Processor shall provide all reasonable assistance to the Controller in the preparation of any Data Protection Impact Assessment prior to commencing any processing. Such assistance may, at the discretion of the Controller, include:
(a.) a systematic description of the envisaged processing operations and the purpose of the processing;
(b.) an assessment of the necessity and proportionality of the processing operations in relation to the Services;
(c.) an assessment of the risks to the rights and freedoms of Data Subjects; and
(d.) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.
16.3 The Processor shall, in relation to any Personal Data Processed in connection with its obligations under this Agreement:
(a.) process that Personal Data only in accordance with Schedule 1, unless the Processor is required to do otherwise by Law. If it is so required, the Processor shall promptly notify the Controller before processing the Personal Data unless prohibited by Law;
(b.) ensure that all measures in Schedule 2 are adhered to and met at all times of the processing and has in place all Protective Measures, which have been reviewed and approved by the Controller as appropriate to protect against a Data Loss Event having taken account of:
i. the nature of the data to be protected;
ii. the harm and risks that might result from a Data Loss Event;
iii. assessment of the technical and non-technical controls to mitigate these risks; and
iv. the cost of implementing any measures if required;
v. ensuring that the Processor Personnel do not process Personal Data except in accordance with this Agreement, and in particular Schedule 1;
vi. taking all reasonable steps further detailed in schedule 2, both technical and non-technical to ensure the reliability and integrity of any Processor Personnel who have access to the Personal Data and ensure that they:
(c.) are aware of and comply with the Processor’s duties under this clause;
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are aware of and comply with the Processor’s duties under this clause;
(d.) are subject to appropriate confidentiality undertakings with the Processor or any Sub-processor. This includes but is not limited to commercially sensitive information and Personal Data;
(e.) are informed of the confidential nature of the Personal Data and commercially sensitive information and do not publish, disclose or divulge any of the Personal Data or commercially sensitive information to any third Party unless directed in writing to do so by the Controller or as otherwise permitted by this Agreement; and
(f.) have undergone adequate annual training in the use, care, protection and handling of Personal Data and are assessed as competent to undertake the processing activity or activities;
(g.) keep personal data and commercially sensitive information confidential for the length of the contract and ensure that once the contract has ended or terminated that personal data and commercially sensitive information is kept confidential indefinitely.
(h.) not transfer Personal Data outside of the European Economic Area (EEA) unless the prior written consent of the Controller has been obtained and the following conditions are fulfilled:
i. the Controller or the Processor has provided appropriate safeguards in relation to the transfer (whether in accordance with UK GDPR Article 46) as determined by the Controller;
ii. the Data Subject has enforceable rights and effective legal remedies;
iii. the Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred (or, if it is not so bound, uses its best endeavours to assist the Controller in meeting its obligations); and
iv. the Processor complies with any reasonable instructions notified to it in advance by the Controller with respect to the processing of the Personal Data;
v. the Processor notifies the Data Controller prior to any transformation of the Personal Data which is not part of this agreed processing but occurs due to the transfer of Personal Data from the service provider to or from another organisation party to this agreement.
(i.) at the written direction of the Controller, delete or return the Personal Data (and any copies of it) to the Controller on termination of the Agreement unless the Processor is required by Law to retain the Personal Data.
16.4 The Processor shall notify the Controller within 72 hours if it:
(a.) receives an Individual Rights Request or any Freedom of Information (FOI) / Environmental Information Regulations (EIR) request relating to this processing;
(b.) receives a request to rectify, block or erase or transfer any Personal Data by the data subject;
(c.) receives any other request, complaint or communication relating to either Party's obligations under the Data Protection Legislation;
(d.) receives any communication from the Information Commissioner or any other regulatory authority in connection with Personal Data Processed under this Agreement;
(e.) receives a request from any third Party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law; or
(f.) becomes aware of a Data Loss Event.
16.5 The Processor’s obligation to notify under clause 16.4 shall include the provision of further information to the Controller in phases, as details become available.
16.6 Taking into account the nature of the processing, the Processor shall provide the Controller with full assistance in relation to either Party's obligations under Data Protection Legislation and any complaint, communication or request made under clause 16.4 (and insofar as possible within the timescales reasonably required by the Controller) including by promptly providing:
(a.) the Controller with full details and copies of the complaint, communication, data loss event or request;
such assistance as is reasonably requested by the Controller to enable the Controller to comply with an Individual Rights Request within the relevant timescales set out in the Data Protection Legislation;
the Controller, at its request, with any Personal Data it holds in relation to a Data Subject;
assistance as requested by the Controller following any data loss event;
assistance as requested by the Controller with respect to any request from the Information Commissioner’s Office, or any consultation by the Controller with the Information Commissioner's Office.
The Processor shall allow for audits of its Data Processing activity by the Controller or the Controller’s designated auditor.
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