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DATA PROCESSING AGREEMENT

CONTRACT DETAILS PROCESSOR

 

Company Name and Company Number: GEMINII SOFTWARE LIMITED (with company number: 11085282)

Address: 453 Carr Place, Preston, PR5 8AU

Email: antony@geminii.uk

CUSTOMER

 

Customers of Geminii Software

Each of the parties shall be referred to as a Party or together, the Parties.

PROCESSING DETAILS

Purpose

For the purpose of the Supplier providing software, maintaining that software and supporting customers to use that software.

Scope and nature of the processing

  • The Processor has entered into this Data Processing Agreement with the Controller to carry out the processing of personal data for the following purposes:
  • Authentication: This allows the controller to allocate, distribute, and otherwise manage controller users’ access to Geminii products and services.
  • Support: This allows the controller to receive third-line support from the processor.
  • Audit: This allows the controller to see real-time data about usage.
  • Licencing: This allows the controller to have access to billing information.

GDPR Article 9 (2)(h), and public interest, i.e. GDPR Article 6(1)(e), but it is up to the Controller to decide the lawful basis for processing. Google Analytics for Firebase data collection Performance Monitoring data collection Identifying devices

Categories of data subject: Customer, User, Vehicle, Parts, Product Groups

Categories of personal data: name, address, email address, marketing preference, location information, IP addresses, vehicle

Duration of Processing: For the duration that the processor provides services to the customer, which is for as long as it is necessary for the supplier to process customer personal data to fulfil the purpose.

BACKGROUND

  1. The Processor is providing services to the Customer where the Processor is required to process Customer Personal Data to fulfil the Purpose (as defined in the Contract Details).
  2. This Agreement sets out the terms on which the Processor will process the Customer Personal Data, in accordance with Data Protection Laws.

1  DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

Agreement: refers to this data processing agreement and includes the Contract Details and any Schedules attached to it.

Customer Personal Data: the personal data processed by the Processor on behalf of the Customer under this Agreement. This personal data being processed is detailed as the ‘Scope and nature of processing’, the ‘Categories of personal data’ and the ‘Categories of data subjects’ in the Contract Details at the front of this Agreement.

Contract Details: refers to the terms agreed between the Parties on the front pages of this Agreement titled “Contract Details”.

Data Protection Laws: all applicable data protection and privacy legislation in force in the United Kingdom, including but not limited to:

  • the UK GDPR as defined in section 3(10) of the Data Protection Act 2018, and supplemented by section 205(4) (“UK GDPR”);
  • the Data Protection Act 2018; and
  • the Privacy and Electronic Communications Regulations 2003 (SI 2003 2426), in each case as amended, updated or replaced from time to time.

Data controller, data processor, data subject, personal data, processing and appropriate technical and organisational measures shall each have the meanings given to them in the UK GDPR.

Duration of Processing: the length of time the Processor will process the Customer Personal Data as described in the Contract Details at the front of this Agreement.

DP Regulator: a valid supervisory authority (as defined under the UK GDPR), which in the UK is the Information Commissioner’s Office.

Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data.

Purpose: means the purpose for processing the Customer Personal Data, as detailed in the Contract Details.

Sub-Processor(s): any processor, including any agent, sub-contractor or other third party, engaged by the Processor (or by any other Sub-Processor) for carrying out any processing activities in respect of the Customer Personal Data.

1.2 A person means an individual, a firm, a company, an unincorporated body or a government entity (whether or not having a separate legal identity from its members or owners) and any of its successors, permitted transferees or permitted assignees.

1.3 Clause, schedule and paragraph headings shall not affect the interpretation of this

1.4 References to statutes, regulations or other legislation or enactments referenced herein shall be deemed to be references to that enactment as amended, supplemented, re-enacted or replaced from time to time

1.5 The words include, including and similar words or expressions will not limit the meaning of the words that come before them.

1.6 Reference to writing or written includes e-mail but not any other form of electronic communication

2   DATA PROTECTION ROLES AND RELATIONSHIP

2.1 The Parties acknowledge that the Customer is the data controller of the Customer Personal Data provided by the Customer to the Processor and the Processor is the data processor of the Customer Personal Data.

2.2 Both Parties will comply with all applicable requirements of Data Protection Laws in relation to personal data that is shared or processed under this Agreement. This Agreement does not relieve, remove or replace, a Party’s obligations or rights under applicable Data Protection Laws.

3 DATA PROCESSING OBLIGATIONS

3.1 Each Party shall maintain records which indicate how that Party processes personal data under its responsibility. These records will contain at least the minimum information required by the Data Protection Laws and each Party shall make that information available to any DP Regulator on

3.2 To the extent that the Processor processes Customer Personal Data on behalf of the Customer, the Processor shall:

3.2.1 process that Customer Personal Data only on the documented instructions of the Customer, which shall include processing the Customer Personal Data to the extent necessary for the Purpose, unless the Processor is otherwise required by applicable laws;

3.2.2 implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, including as appropriate:

  1. the pseudonymisation and encryption of Customer Personal Data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident; and
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;

3.2.3 maintain the confidentiality of the Customer Personal Data, not disclose the Customer Personal Data to any third party other than as authorised to do so under this Agreement and ensure that any personnel engaged and authorised by the Processor to process Customer Personal Data have committed themselves to obligations of confidentiality;

3.2.4 assist the Customer in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under applicable Data Protection This process shall be provided (at the Customer’s cost) and shall include:

a)recording and referring all requests and communications received from data subjects or any DP Regulator to the Customer which relate to any Customer Personal Data promptly (and in any event within five days of receipt); and

b)not responding to any such requests without the Customer’s express written approval and strictly in accordance with the Customer’s instructions unless and to the extent required by applicable law.

3.2.5 promptly (and in any event within 48 hours):

  1. notify the Customer if it (or any of the Sub-Processors or the Processor personnel) becomes aware of any actual occurrence of any Personal Data Breach in respect of any Customer Personal Data; and
  2. provide all information as the Customer reasonably requires to report the circumstances to a DP Regulator and to notify affected data subjects under Data Protection Laws.

3.3Where the Processor is relying on applicable laws as the basis for processing Customer Processor Data under clause 3.2.1 above, the Processor shall use reasonable efforts to notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Processor from so notifying the Customer.

4  SUB-PROCESSORS

4.1 The Customer hereby provides its prior, general authorisation for the Processor to appoint Sub- Processors to process the Customer Personal Data, provided that the Processor:

4.2 shall ensure any Sub-Processors will comply with applicable Data Protection Laws, and will comply with terms that are materially similar to those imposed on the Processor in this clause 4;

4.3shall remain responsible for the acts and omissions of any such Sub-Processor as if they were the acts and omissions of the Processor; and

4.4 shall inform the Customer of any intended changes concerning the addition or replacement of the Sub-Processors; giving the Customer the opportunity to object to such changes. Where the Customer objects to the changes and cannot demonstrate, in the Processor’s reasonable opinion, that the objection is due to an actual or likely breach of applicable Data Protection Law, the Customer shall indemnify the Processor for any losses, damages, costs (including legal fees) and expenses suffered by the Processor in accommodating the objection.

5 INTERNATIONAL TRANSFERS

5.1 The Processor may transfer Customer Personal Data outside of the United Kingdom and European Economic Area as required to process the Customer Personal Data for the Purpose under this Agreement, provided that the Processor shall ensure that all such transfers are made in accordance with applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Processor, including any request to enter into standard data protection clauses to safeguard international transfers, as adopted by the UK Information Commissioner.

6 LIABILITY

6.1 Neither Party excludes nor limits any liability for:

6.1.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a Party or its employees; or

6.1.2 fraud or fraudulent misrepresentation; or

6.1.3 any other liability to the extent it cannot be excluded or limited by

6.2 Subject to the provisions of this clause 6 and the last paragraph of the clause titled “indemnity” below, the Parties’ total aggregate liability arising under or in connection with this Agreement, or applicable Data Protection Laws, shall be limited to £50,000.

7 AUDIT

7.1 The Processor shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Customer.

7.2 Such records shall include all information necessary to demonstrate its compliance with this Agreement and the information referred to in Articles 30(1) and 30(2) of the UK GDPR.

7.3 The Processor shall make copies of such records referred to in this clause 7 available to the Customer promptly on written request by the Customer.

7.4 The Processor shall (and shall ensure all Sub-Processors shall) promptly on written request by the Customer make available to the Customer (at no cost the Customer) such information as is required to demonstrate the Processor’s with their obligations under this Agreement and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by the Customer (or another auditor instructed by the Customer) for this purpose annually (if requested) and in the event of an actual or suspected Personal Data Breach.

7.5 Except in the event of an actual or suspected Personal Data Breach, the Customer shall provide no less than 30 days’ notice to the Processor of any audit under this clause 7 and shall use reasonable endeavours to cause minimal disruption to the Processor’s business during any such audit.

8 TERMINATION AND EFFECT OF TERMINATION

8.1This Agreement shall remain in full effect for the Duration of Processing following which it shall automatically terminate.

8.2Where the Processor no longer requires the Customer Personal Data for the Purpose, it shall, at the written direction of the Customer, delete (so far as technically possible) or return Customer Personal Data and any copies to the Customer within 30 days of termination of this Agreement, unless the Processor is required by any applicable law to continue to process that Customer Personal Data.

8.3 For the purposes of this clause 8, Customer Personal Data shall be considered deleted where it can longer be used further by the Processor.

9 INDEMNITY

Subject to the limitation of liability below, the Processor shall indemnify the Controller against all costs, claims, damages, or expenses incurred by the Controller for which it may become liable due to any failure by the Processor, its employees, agents, contractors, or sub-processors to comply with any of its obligations set out under this Agreement or the Data Protection Legislation. The Processor’s liability in relation to this Agreement shall be limited to an amount equal to the amount paid or payable by the Controller to the Processor under the terms of its agreement (on a rolling 12-month basis) or £50,000, whichever shall be the lower sum.

10 GENERAL

10.1 Costs

 Each Party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.

10.2 Survival of terms

 The Parties intend the following terms to survive termination: clauses 1, 6, 7, 8, 9 and 10 and all clauses required for their interpretation.

10.3 Relationship of the Parties

 The Parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

10.4 Third party rights

 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.

However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

10.5 Assignment and other dealings

 No Party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other Party’s prior written consent or except as expressly permitted in this Agreement.

10.6 Variation

 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each Party.

10.7 Severability

 If any clause in this Agreement (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the Parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

10.8 Waiver

 No delay, act or omission by either Party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

10.9 Notices

 Notices under this Agreement must be in writing and sent to the other Party’s address, as set out above in the Contract Details. Letters sent in the United Kingdom will be deemed delivered 3 business days (excluding English Bank Holidays), after sending. Emails will be deemed delivered the same day (or the next business day, if sent on a non-business day or after 5pm on any business day at the recipient’s location).

10.10 Counterparts

 This Agreement may be signed in any number of counterparts and by the Parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same Agreement. This Agreement will not be effective until each Party has signed one counterpart.

10.11 Governing law and jurisdiction

 This Agreement is governed by the law of England and Wales. All disputes under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.