Data Processing Agreement

BETWEEN:

[The data controller], a company incorporated under the laws of [country], having its registered office and principal place of business in [city] at [address], as registered with the [Chamber of Commerce] under number [number] (hereinafter to be referred to as: the “Data Controller”),

AND

[The data processor], a company incorporated under the laws of [country], having its registered office in [town] at [address] and principal place of business in [city] at [address], as registered with the [Chamber of Commerce] under number [number] (hereinafter to be referred to as: the “Data Processor”).

HEREBY AGREE AS FOLLOWS:

Subject matter of this Data Processing Agreement

  • This Data Processing Agreement applies to the processing of personal data [in the scope of the agreement of [date] between the parties for the [provision of services] (“Services”) (hereinafter to be referred to as: the “Service Agreement”).]
  • The term EU Data Protection Law shall mean 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).
  • Terms such as “Processing”, “Personal data”, “Data Controller” and “Processor “are described in Annex 5.
  • Insofar as the Data Processor will be processing Personal Data on behalf of the Data Controller in the course of the performance of the Service Agreement with the Data Controller the terms of this Data Protection Agreement shall apply. An overview of the categories of Personal Data, the types of Data Subjects, and purposes for which the Personal Data are being processed is provided in Annex 2.

The Data Controller and the Data Processor

  • The Data Controller will determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by the Data Processor. The Data Processor will process the Personal Data only as set forth in Data Controller’s written instructions.
  • The Data Processor will only process the Personal Data on documented instructions of the Data Controller in such manner as – and to the extent that – this is appropriate for the provision of the Services, except as required to comply with a legal obligation to which the Data Processor is subject. In such a case, the Data Processor shall inform the Data Controller of that legal obligation before processing, unless that law explicitly prohibits the furnishing of such information to the Data Controller. The Data Processor shall never process the Personal Data in a manner inconsistent with the Data Controller’s documented instructions. The Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes this Data Protection agreement.

The Parties have entered into a Service Agreement in order to benefit from the expertise of the Processor in securing and processing the Personal Data for the purposes set out in Annex 2.

Data Controller warrants that it has all necessary rights to provide the Personal Data to Data Processor for the Processing to be performed in relation to the Services. To the extent required by Applicable Data Protection Law, Data Controller is responsible for ensuring that any necessary data subject consents to this Processing are obtained, and for ensuring that a record of such consents is maintained. Should such a consent be revoked by the data subject, Data Controller is responsible for communicating the fact of such revocation to the Data Processor, and Data Processor remains responsible for implementing any Data Controller instruction with respect to the further processing of that Personal Data.

Confidentiality

Without prejudice to any existing contractual arrangements between the Parties, the Data Processor shall treat all Personal Data as strictly confidential and it shall inform all its employees, agents and/or approved sub-processors engaged in processing the Personal Data of the confidential nature of the Personal Data. The Data Processor shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.

Security

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, without prejudice to any other security standards agreed upon by the Parties, the Data Controller and Data Processor shall implement appropriate technical and organizational measures to ensure a level of security of the processing of Personal Data appropriate to the risk.

 

These measures shall include as appropriate:

(a) Measures to ensure that the Personal Data can be accessed only by authorized personnel for the purposes set forth in Annex 2 of this Data Processing Agreement;

(b) In assessing the appropriate level of security account shall be taken in particular of all the risks that are presented by processing, for example from accidental or unlawful destruction, loss, or alteration, unauthorized or unlawful storage, processing, access or disclosure of Personal Data;

(c) Encryption of personal data;

(d) The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(e) The ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

(f) A process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Personal Data;

(g) Measures to identify vulnerabilities with regard to the processing of Personal Data in systems used to provide services to the Data Controller;

(h) The measures agreed upon by the Parties in Annex 3.

  • The Data Processor shall at all times have in place an appropriate written security policy with respect to the processing of Personal Data. Outlining in any case the measures set forth in the definition – ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one 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;
  • At the request of the Data Controller, the Data Processor, shall demonstrate the measures it has taken pursuant and shall allow the Data Controller to audit and test such measures. The Data Controller shall be entitled on giving at least 14 days’ notice to the Data Processor to carry out, or have carried out by a third party who has entered into a confidentiality agreement with the Data Processor, audits of the Data Processor´s premises and operations as these relate to the Personal Data. The Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller and shall grant the Data Controller´s auditors reasonable access to any premises and devices involved with the Processing of the Personal Data. The Data Processor shall provide the Data Controller and/or the Data Controller´s auditors with access to any information relating to the Processing of the Personal Data as may be reasonably required by the Data Controller to ascertain the Data Processor´s compliance with this Data Processing Agreement. 

Improvements to Security

  • The Parties acknowledge that security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures.
  • Where an amendment to the Service Agreement is necessary in order to execute a Data Controller instruction to the Data Processor to improve security measures as may be required by changes in applicable data protection law from time to time, the Parties shall negotiate an amendment to the Service Agreement in good faith.

Data Transfers

  • The Data Processor shall immediately notify the Data Controller of any (planned) permanent or temporary transfers of Personal Data to a country outside of the European Economic Area without an adequate level of protection and shall only perform such a (planned) transfer after obtaining authorization from the Data Controller, which may be refused at its own discretion.

Information Obligations and Incident Management

  • When the Data Processor becomes aware of an incident that impacts the Processing of the Personal Data that is the subject of the Services Agreement, it shall promptly notify the Data Controller about the incident, shall at all times cooperate with the Data Controller, and shall follow the Data Controller’s instructions with regard to such incidents, in order to enable the Data Controller to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
  • The term “incident” shall be understood to mean in any case:(a) a complaint or a request with respect to the exercise of a data subject’s rights;
  • An investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent;
  • Any unauthorized or accidental access, processing, deletion, loss or any form of unlawful processing of the Personal Data;
  • Any breach of the security and/or confidentiality as set out in Territorial scope (Annex 6 )of this Data Processing Agreement leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place;
  • Where, in the opinion of the Data Processor, implementing an instruction received from the Data Controller would violate applicable laws to which the Data Controller or the Data Processor are subject.
  • The Data Processor shall at all times have in place written procedures which enable it to promptly respond to the Data Controller about an incident. Where the incident is reasonably likely to require a data breach notification by the Data Controller the Data Processor shall implement its written procedures in such a way that it is in a position to notify the Data Controller no later than 24 hours of having become aware of such an incident.
  • Any notifications made to the Data Controller pursuant to conditions for consent (Annex 7) shall be addressed to the employee of the Data Controller whose contact details are provided in Annex 1 of this Data Processing Agreement, and shall contain:
  • A description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;
  • The name and contact details of the Data Processor’s data protection officer or another contact point where more information can be obtained;
  • A description of the likely consequences of the incident; and
  • A description of the measures taken or proposed to be taken by the Data Processor to address the incident including, where appropriate, measures to mitigate its possible adverse effects.

Contracting with Sub-Processors

  • [The Data Processor shall not subcontract any of its Service-related activities consisting (partly) of the processing of the Personal Data or requiring Personal Data to be processed by any third party without the prior written authorization of the Data Controller].
  • [The Data Controller authorizes the Data Processor to engage the sub-processors in the country locations for the Service-related activities specified as described in Annex 2. Data Processor shall inform the Data Controller of any addition or replacement of such sub-processors giving the Data Controller an opportunity to object to such changes.]
  • Notwithstanding any authorization by the Data Controller within the meaning of the preceding paragraph, the Data Processor shall remain fully liable vis-à-vis the Data Controller for the performance of any such sub processor that fails to fulfil its data protection obligations.
  • The consent of the Data Controller pursuant to conditions applicable to child’s consent in relation to information society services shall not alter the fact that consent is required under lawfulness of processing for the engagement of sub-processors in a country outside the European Economic Area without a suitable level of protection.
  • The Data Processor shall ensure that the sub-processor is bound by the same data protection obligations of the Data Processor under this Data Processing Agreement, shall supervise compliance thereof, and must in particular impose on its sub-processors the obligation to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of Data Processing Agreement..
  • The Data Controller may request that the Data Processor audit a Third Party Sub processor or provide confirmation that such an audit has occurred (or, where available, obtain or assist customer in obtaining a third-party audit report concerning the Third Party Sub processor’s operations) to ensure compliance with its obligations imposed by the Data Processor in conformity with this Agreement.

Returning or Destruction of Personal Data

  • Upon termination of this Data Processing Agreement, upon the Data Controller’s written request, or upon fulfillment of all purposes agreed in the context of the Services whereby no further processing is required, the Data Processor shall, at the discretion of the Data Controller, either delete, destroy or return all Personal Data to the Data Controller and destroy or return any existing copies within 14 working days
  • The Data Processor shall notify all third parties supporting its own processing of the Personal Data of the termination of the Data Processing Agreement and shall ensure that all such third parties shall either destroy the Personal Data or return the Personal Data to the Data Controller, at the discretion of the Data Controller.

Assistance to Data Controller

  • The Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the data subject’s rights under the GDPR.
  • The Data Processor shall make available to the Data Controller all information necessary to demonstrate compliance with the Data Processor’s obligations and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller.

Liability and Indemnity

  • The Data Processor indemnifies the Data Controller and holds the Data Controller harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Data Controller and arising directly or indirectly out of or in connection with a breach of this Data Processing Agreement and/or the Applicable Data Protection Law by the Data Processor.

Duration and Termination

  • This Data Processing Agreement shall come into effect on [date].
  • Termination or expiration of this Data Processing Agreement shall not discharge the Data Processor from its confidentiality obligations.
  • The Data Processor shall process Personal Data until the date of termination of the agreement, unless instructed otherwise by the Data Controller, or until such data is returned or destroyed on instruction of the Data Controller.

Miscellaneous

  • In the event of any inconsistency between the provisions of this Data Processing Agreement and the provisions of the Service Agreement, the provisions of this Data Processing Agreement shall prevail.
  • This Data Processing Agreement is governed by the laws of [Country]. Any disputes arising from or in connection with this Data Processing Agreement shall be brought exclusively before the competent court of [Jurisdiction].

Signed

for and on behalf of the Data Controller Name:

Title:

Date:

Signed

for and on behalf of the Data Controller Name:

Title:

Date:

Annex 1:

Contact information of the [data protection officer/compliance officer] of the Data Controller.

[Contact information]

Contact information of the [data protection officer/compliance officer] of the Data Processor.

[Contact information]

Annex 2:

In accordance with Applicable Data Protection Laws, the Parties acknowledge and agree the following in relation to the Personal Data to be processed during Provider’s provision of the Services:

Nature of Processing
Purpose of Processing
Type of personal data
Categories of Data Subjects

Special categories of data (if appropriate)

Please list any special categories of data, including sensitive data that you process. Sensitive data includes data related to gender, location, biometrics, genetics, health, race, ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life or sexual orientation, and data related to criminal offences.

Annex 3:

Security measures – Please refer the attached compliance self-certification form

Annex 4:

Mention transfers to countries outside the European Economic Area without a suitable level of protection for which the Data Controller has granted its authorization:

Annex 5:

Definitions:

  1. ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
  2. ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one 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;
  3. ‘Data controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;
  4. ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

 

Annex 6:

Territorial scope

  1. Data Processing Agreement applies to the processing of personal data in the context of the activities of an establishment of a Controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
  2. Data Processing Agreement applies to the processing of personal data of data subjects who n by a controller or processor not established in the Union, where the processing activities are related to:
  3. the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
  4. the monitoring of their behavior as far as their behavior takes place within the Union.
  5. Data Processing to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.

Annex 7:

Conditions of Consent

  1. Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.
  2. If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this agreement shall not be binding.
  3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.
  4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.