Data processing agreement
Scope of the agreement
This Agreement reflects the parties' agreement with regard to the processing of personal data.
The Supplier acts as a data processor for the Customer, as the Supplier process personal data for the Customer as set out in Annex 1.
The personal data to be processed by the Supplier concerns the categories of data, the categories of data subjects and the purposes of the processing set out in Annex 1.
"Personal data" means any information relating to an identified or identifiable natural person, see article 4(1) of Regulation (EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation "GDPR"). If other confidential information than personal data is processed for the purpose of fulfilling the Agreement, e.g. information considered confidential according to the Financial Business Act, any reference to "personal data" shall include the other confidential information. Sensitive Data will not be processed pursuant to this DPA and the Customer warrants and represents that the Customer will not be sharing, disclosing or otherwise transferring sensitive data to the Supplier.
Processing of Personal Data
Instructions: The Supplier is instructed to process the personal data only for the purposes of providing the data processing services set out in Annex 1. The Supplier may not process or use the Customer's personal data for any other purpose than provided in the instructions, including the transfer of personal data to any third country or an international organisation, unless the Supplier is required to do so according to Union or member state law. In that case, the Supplier shall inform the Customer in writing of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
If the Customer in the instructions in Annex 1 or otherwise has given permission to a transfer of personal data to a third country or to international organisations, the Supplier must ensure that there is a legal basis for the transfer, e.g. the EU Commission's Standard Contractual Clauses for the transfer of personal data to third countries.
If the Supplier considers an instruction from the Customer to be in violation of the GDPR, or other Union or member state data protection provisions, the Supplier shall immediately inform the Customer in writing about this.
If the Supplier is subject to legislation of a third country, the Supplier declares not to be aware of the mentioned legislation preventing the Supplier from fulfilling the Agreement, and that the Supplier will notify the Customer in writing without undue delay, if the Supplier becomes aware of that such hindrance is present or will occur.
The Supplier’s General Obligations
The Supplier must ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The Supplier shall implement appropriate technical and organisational measures to prevent that the personal data processed is
accidentally or unlawfully destroyed, lost or altered,
disclosed or made available without authorisation, or
otherwise processed in violation of applicable laws, including the GDPR.
The Supplier must also comply with the special data security requirements that apply to the Customer, see Annex 1, and with any other applicable data security requirements that are directly incumbent on the Supplier; including the data security requirements in the country of establishment of the Supplier, or in the country where the data processing will be performed.
The appropriate technical and organisational security measures must be determined with due regard for
the current state of the art,
the cost of their 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.
The Supplier shall upon request provide the Customer with sufficient information to enable the Customer to ensure that the Supplier complies with its obligations under the Agreement, including ensuring that the appropriate technical and organisational security measures have been implemented.
The Customer is entitled at its own cost to appoint an independent expert who shall have access to the Supplier's office and receive the necessary information in order to be able to audit whether the Supplier complies with its obligations under the Agreement, including ensuring that the appropriate technical and organisational security measures have been implemented. The Customer must give the Supplier 30 days prior written notice of such request for access. The expert shall upon the Supplier's request sign a customary non-disclosure agreement, and treat all information obtained or received from the Supplier confidentially, and may only share the information with the Customer and the Supplier.
The Supplier must provide information related to the provision of the services to authorities or the Customer's external advisors, including auditors, if this is necessary for the performance of their duties in accordance with Union or member state law.
The Supplier must give authorities who by union or member state law have a right to enter the Customer's or the Customer's supplier's facilities, or representatives of the authorities, access to the Supplier's physical facilities against proper proof of identity.
The Supplier must without undue delay after becoming aware of the facts in writing notify the Customer about:
any request for disclosure of personal data processed under the Agreement by authorities, unless expressly prohibited under Union or member state law,
any suspicion or finding of (a) breach of security that results in accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by the Supplier under the Agreement, or (b) other material failure to comply with the Supplier's obligations under Clause 3.2 and 3.3.
The Supplier must promptly assist the Customer with the handling of any requests from data subjects under Chapter III of the GDPR, including requests for access, rectification, blocking or deletion. The Supplier must also assist the Customer by implementing appropriate technical and organisational measures, for the fulfilment of the Customer's obligation to respond to such requests.
The Supplier must assist the Customer with meeting the other obligations that may be incumbent on the Customer according to Union or member state data protection law where the assistance of the Supplier is implied, and where the assistance of the Supplier is necessary for the Customer to comply with its obligations. This includes, but is not limited to, at request to provide the Customer with all necessary information about an incident under Clause 3.10 (ii), and all necessary information for an impact assessment in accordance with article 35 and 36 of the GDPR.
Any services from the Supplier as set out in clause 3.7 to 3.9 and 3.11 to 3.12 are billable and will be charged in accordance with the price list made available to the Customer upon concluding this agreement.
In Annex 1, the Supplier has stated the physical location of the servers and offices used to provide the data processing services. The Supplier undertakes to keep the information about the location updated by providing a prior written notice of 30 days to the Customer. This does not require a formal amendment of Annex 1, prior written notice by mail or email suffices.
The Supplier may engage a subsupplier. At the time of the Agreement, the Supplier uses the subsuppliers set out in Annex 2. The Supplier undertakes to inform the Customer of any intended changes concerning the addition or replacement of a subsupplier by providing a 30 days prior written notice to the Customer. The Customer may object to the use of a subsupplier if such objection is relevant and reasoned in regards to data protection issues. If the objection is relevant and reasoned the Supplier will suggest a new sub-suppliers in order for the Customer to accept that one.
Prior to the engagement of a subsupplier, the Supplier shall conclude a written agreement with the subsupplier, in which at least the same data protection obligations as set out in the Agreement shall be imposed on the subsupplier, including an obligation to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR.
The Customer has the right to receive a copy of the Supplier's agreement with the subsupplier as regards the provisions related to data protection obligations. The Supplier shall remain fully liable to the Customer for the performance of the subsupplier's obligations.
The Supplier shall keep personal data confidential pursuant to the signed confidentiality agreement in place between the parties.
Amendments and Assignments
The Parties may at any time agree to amend this Agreement. Amendments must be in writing.
Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, both parties may assign their rights and obligations under this Agreement in connection with a consolidation, merger, acquisition or sale of substantially all of its assets, shares or activities without the prior written consent of the other party.
Term and Termination of the Agreement
The Agreement enters into force on the Effective Date and remains in force until terminated by one of the Parties.
Each party may terminate the Agreement upon 30 days written notice.
Regardless of the term of the Agreement, the Agreement shall be in force as long as the Supplier processes the personal data, for which the Customer is data controller.
On the Customer's request the Supplier shall immediately delete or anonymise personal data, which the Supplier is processing for the Customer, unless Union or member state data protection law requires storage of the personal data.
If any of the provisions of the Agreement conflict with the provisions of any other written or oral agreement concluded between the Parties, then the provisions of the Agreement shall prevail. However, the requirements in Clause 3 do not apply to the extent that the Parties in another agreement have set out stricter obligations for the Supplier. Furthermore, the Agreement shall not apply if and to the extend the EU Commission's Standard Contractual Clauses for the transfer of personal data to third countries are concluded and such clauses set out stricter obligations for the Supplier and/or for sup-suppliers.
This Agreement does not determine the Customer's remuneration of the Supplier for the Supplier's services according to the Agreement.