Data Processing Agreement

This Data Processing Agreement (“Agreement“) forms part of the Contract for Goods and / or Services (“Principal Agreement“) between:

You/Your Organisation (the “Company”) and
Sync, a trading name of GBM Digital Technologies Limited (the “Data Processor”)

(together as the “Parties”)

WHEREAS

(A) The Company acts as a Data Controller.

(B) The Company wishes to subcontract or assign a supplier to provide certain Goods and / or Services, which imply the processing of personal data, to the Data Processor.

(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

(D) The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

1.1 Unless otherwise defined herein, capitalised terms and expressions used in this Agreement shall have the following meaning:

1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;

1.1.2 “Company Personal Data” means any Personal Data processed by the Processor or any Sub-processor on behalf of the Company pursuant to or in connection with the Principal Agreement.

1.1.3 “Contracted Processor” means Sync, a trading name of GBM Digital Technologies Limited.

1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.5 “EEA” means the European Economic Area;

1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;

1.1.8 “Data Transfer” means:

1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or

1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

1.1.9 “Services” means the goods and / or services the Company provides.

1.1.10 “Sub-processor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Company Personal Data

2.1 Processor shall:

2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and

2.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions, except as set out in clause 2.3.

2.2 The Company instructs Processor to process Company Personal Data.

2.3 Apple Services and Independent Controllers

2.3.1 Where the Services involve the configuration, deployment, management, or support of Apple devices or Apple services (including, where applicable, Apple School Manager, Managed Apple IDs, device enrolment, mobile device management, iCloud, diagnostics, repair, or support services), the Company acknowledges that Apple Inc. and its group companies act as independent data controllers.

2.3.2 Apple processes personal data in accordance with its own purposes, means, contractual terms, and privacy notices, and not on the instructions of the Processor.

2.3.3 The Processor’s role in relation to Apple services is limited to enablement, configuration, and administration of those services on behalf of the Company and does not include determining the purposes or means of Apple’s Processing.

2.3.4 The Processor shall not be responsible for the compliance of Apple or any other independent controller with Data Protection Laws.

3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1 The Company provides a general written authorisation for the Processor to appoint Sub-processors for the provision of the Services.

5.2 This authorisation includes members of the Processor’s group of companies, where Company Personal Data is processed to enable the Processor to deliver the Services, including for resourcing, technical support, service delivery, security, or operational purposes. Such processing may include shared systems, personnel, or infrastructure across the Processor’s group.

5.3 The Processor shall ensure that:

5.3.1 any Sub-processor is subject to data protection obligations no less protective than those set out in this Agreement; and

5.3.2 the Processor remains fully liable for the acts and omissions of its Sub-processors in relation to the Processing of Company Personal Data.

5.4 The Processor shall make available, on request, a current list of Sub-processors and shall notify the Company of any intended material changes, allowing the Company a reasonable opportunity to object on data protection grounds.

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Processor shall:

6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

6.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

8.1 Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Company Personal Data

9.1 Upon cessation of the Services, the Processor shall, at the Company’s written instruction, delete or return Company Personal Data, unless retention is required by Applicable Law.

9.2 This obligation applies only to Company Personal Data within the Processor’s control and does not apply to data retained by independent controllers.

10. Audit rights

10.1 Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 The Processor shall not transfer Company Personal Data outside the UK, EU, or EEA unless appropriate safeguards are in place in accordance with Data Protection Laws, including:
(a) UK Addendum to the EU Standard Contractual Clauses;
(b) EU Standard Contractual Clauses under Article 46 GDPR; or
(c) an applicable adequacy decision.

11.2 Where Company Personal Data is transferred by an independent third-party controller (including Apple), such transfers shall be governed by that third party’s own transfer mechanisms and safeguards.

12. General Terms

12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. Controller shall be notified by email sent to the address related to its use of the Service under the Principal Agreement. Processor shall be notified by email sent to the address: gdpr@wearesync.co.uk.

12.3 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision of the Agreement is deemed deleted under this clause 12.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended result of the original provision.

13. Governing Law and Jurisdiction

The Agreement shall be governed by English Law and the jurisdiction of the English Courts.