Data Processing Agreement
SECTION I
Clause 1 - Purpose and scope
(a) The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article28(3) and (4) of 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.
(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679.
(c) These Clauses apply to the processing of personal data as specified in Annex II.
(d) Annexes I to IV are an integral part of the Clauses.
(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679.
(f) These Clauses do not by themselves ensure compliance with obligations related to internationaltransfers in accordance with Chapter V of Regulation (EU) 2016/679.
Clause 2 - Invariability of the Clauses
(a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
(b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.
Clause 3 - Interpretation
(a) Where these Clauses use the terms defined in Regulation (EU) 2016/679 those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU)2016/679.
(c)These Clauses shall not be interpreted in a way that runs counter to the rights and obligations providedfor in Regulation (EU) 2016/679 or in a way that prejudices the fundamental rights or freedoms of the data subjects.
Clause 4 - Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 5 - Docking Clause
(a) Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.
(b) Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.
(c) The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.
SECTION II-OBLIGATIONS OF THE PARTIES
Clause 6 - Description of processing(s)
The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.
Clause 7 - Obligations of the Parties
7.1. Instructions
(a) The processor shall process personal data only on documented instructions from the controller, unlessrequired to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.
(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 or the applicable Union or Member State data protection provisions.
7.2. Purpose Limitation
The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.
7.3. Duration of the processing of personal data
Processing by the processor shall only take place for the duration specified in Annex II.
7.4. Security of processing
(a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure oraccess to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.
(b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.5. Sensitive data
If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.
7.6. Documentation and compliance
(a) The Parties shall be able to demonstrate compliance with these Clauses.
(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation(EU) 2016/679. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.
(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in this Clause, including the results of any audits,available to the competent supervisory authority/ies on request.
7.7. Use of sub-processors
(a) The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.
(b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679.
(c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
(d) The processor shall remain fully responsible to the controller for the performance of the sub- processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.
(e) The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
7.8. International transfers
(a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679.
(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU)2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation(EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance withof Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.
Clause 8 - Assistance to the controller
(a) The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.
(b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions
(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
(1) the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
(2) the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;
(3) the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;
(4) the obligations in Articles 32 Regulation (EU) 2016/679.
(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.
Clause 9 - Notification of personal data breach
In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 Regulation (EU) 2016/679, taking into account the nature of processing and the information available to the processor.
9.1. Data breach concerning data processed by the controller
In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:
(a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
(b) in obtaining the following information which, pursuant to Article 33(3) Regulation (EU) 2016/679, shall be stated in the controller’s notification, and must at least include:
(1) the nature of the personal data including where possible, the categories and approximatenumber of data subjects concerned and the categories and approximate number of personaldata records concerned;
(2) the likely consequences of the personal data breach;
(3) the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(c) in complying, pursuant to Article 34 Regulation (EU) 2016/679, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.
9.2. Data breach concerning data processed by the processor
In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:
(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
(b) the details of a contact point where more information concerning the personal data breach can be obtained;
(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.
Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.
SECTION III-FINAL PROVISIONS
Clause 10 - Non-compliance with the Clauses and termination
(a) Without prejudice to any provisions of Regulation (EU) 2016/679, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:
(1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
(2) the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679;
(3) the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679.
(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.
(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.
Clause 11 - Unlawful instructions from the data controller
(a) The data processor acts in accordance with instructions given by the data controller. If instructions given by the data controllers are unlawful, the data processor is not obligated to follow the instructions. The data processor should notify the data controller as soon as possible about the unlawful instructions and notify the data controller that the data processor will not execute the unlawful instruction.
(b) In case the data processor, in good faith, acts in accordance with an unlawful instruction given by the data controller, the data controller is obligated to indemnify the data processor of any damage the data processor will suffer.
Clause 11 - Liability between the parties
(a) The parties are liable for breaches of these clauses. The liability is subject to regulation in accordance with the liability clauses set forth in the SaaS Agreement between the parties.
(b) Under no circumstance will the liability of the parties for breaches of the clauses in this agreement exceed the liability cap set forth in the SaaS Agreement between the parties.
(c) If the parties have agreed upon a liability cap, that directly contradicts the law applicable to this agreement, the liability cap will not take effect, e.g., in the event of fraud.
ANNEX I-LIST OF PARTIES
The Data Controller
The Client is the Data Controller.
The Data Processor
The Supplier is the Data Processor.
The Data Controller can reach the Data Processor withinquiries regarding this data processing agreement at legal@relesys.net.
ANNEX II-DESCRIPTION OF PROCESSING
ANNEX III-TECHNICAL AND ORGANIZATIONAL MEASURES
The Data Processor has implemented appropriate technical and organizational measures to ensure the security of personal data during processing, including the following;
Network Security
Network Segmentation
The Data Processor has implemented network segmentation measures to isolate different parts of the network and restrict access to sensitive areas. This helps minimize the risk of unauthorized access to personal data.
Firewalls and Intrusion Detection Systems
The Data Processor has implemented firewalls and intrusion detection systems to monitor network traffic and detect and prevent unauthorized access attempts. This helps prevent data breaches and ensure the confidentiality and integrity of personal data.
Virtual Private Network (VPN)
If the transmission of personal data requires the use of the internet, The Data Processor has established a VPN connection to encrypt all data transmitted between the respective networks. The VPN is implemented using industry-standard protocols and security measures.
Data transmission
Encryption in transit
All personal data transmitted between The Data Processor and the Data Controller is encrypted using industry-standard encryption protocols such as SSL/TLS, PGP, or IPSec. The encryption is implemented using strong encryption keys and cryptographic algorithms.
Secure Sockets Layer (SSL) Certificates
The Data Processor has ensured that all websites and web applications used to transmit personal data are secured with SSL certificates. The SSL certificates are issued by reputable Certificate Authorities and are implemented using industry-standard protocols.
Transport Layer Security (TLS)
The Data Processor has ensured that all email transmissions of personal data are secured with TLS encryption. The TLS encryption is implemented using industry-standard protocols and security measures.
Secure File Transfer Protocol (SFTP)
If personal data is transmitted through file transfers, The Data Processor has ensured that the data is transferred using SFTP. The SFTP connection is established using industry-standard protocols and security measures.
Data storage
Encryption at rest
The Data Processor has implemented encryption measures to protect personal data during storage. The encryption algorithm used is strong and meet industry standards. Encryption keys are securely managed and protected, and access to the keys is limited to authorized personnel only.
Access Controls
The Data Processor has implemented appropriate access controls to prevent unauthorized access to personal data during storage. Access controls include user identification and authentication, role-based access control, and access logging.
Physical Security
The Data Processor has implemented physical security measures to prevent unauthorized access to personal data during storage. Measures include, but are not limited to, secure storage facilities, access control systems, and monitoring systems.
Backup and Recovery
The Data Processor has implemented backup and recovery measures to ensure the availability of personal data during storage. Backup procedures are performed regularly and tested to ensure data can be recovered in the event of a system failure or disaster.
Data Retention
The Data Processor has implemented data retention policies to ensure personal data is not stored for longer than necessary. Data retention policies comply with applicable data protection laws and regulations.
Data Disposal o
The Data Processor has implemented appropriate measures for the secure disposal of personal data at the end of its lifecycle. Data disposal procedures comply with applicable data protection laws and regulations and ensure that personal data is irreversibly destroyed.
Data Loss Prevention
The Data Processor has implemented measures to prevent data loss due to system failure or human error. These measures include, but are not limited to, redundancy and data backup.
Data minimization
The Data Processor has ensured that only the minimum amount of personal data necessary for the transmission is transmitted. The Data Processor has also ensured that the personal data is anonymized or pseudonymized wherever possible.
Data Portability
The Data Processor has implemented measures to allow data subjects to receive their personal data in a structured, commonly used, and machine-readable format and to transmit this data to other data processors without hindrance. This includes providing the Data Controller with a user-friendly interface for downloading the data.
Erasure
The Data Processor has implemented measures to ensure the erasure of personal data when it is no longer needed for its original purpose or when the data subject withdraws their consent for processing. This includes establishing automated deletion mechanisms or implementing manual deletion procedures.
Authentication and authorization
User Identification
The Data Processor has implemented appropriate measures to ensure that only authorized users have access to personal data. The measures include, but are not limited to, user identification through unique usernames and strong passwords. The Data Processor has also implemented multi-factor authentication where necessary to further enhance the security of user identification.
User Authorization
The Data Processor has ensured that users have access only to personal data that is necessary for the performance of their duties. The Data Processor has implemented appropriate measures to ensure that users cannot access personal data that is outside the scope of their authorization. The Data Processor has also implement a process for managing user authorization, including the review and revocation of user access rights.
Role-Based Access Control
The Data Processor has implemented a role-based access control (RBAC) system to manage user access to personal data. The RBAC system ensure that users are assigned roles based on their job functions and responsibilities. The RBAC system also ensure that users are granted access to personal data only if it is necessary for the performance of their duties.
Audit Trails
The Data Processor has implemented an audit trail system to monitor user activities related to personal data. The audit trail system records all user activities related to personal data, including access, modification, and deletion. The audit trail system also records the date and time of each user activity, the user ID, and the personal data accessed.
Access controls
The Data Processor has ensured that only authorized personnel have access to personal data during transmission. Access controls is implemented using industry-standard authentication and authorization protocols.
Confidentiality, integrity, availability and resilience
Data subject rights
The Data Processor has ensured that data subjects are able to exercise their rights under applicable data protection laws and regulations, even if the personal data is pseudonymized. The Data Processor has implemented appropriate measures to enable data subjects to exercise their rights, such as providing access to the original data.
Confidentiality
The Data Processor has ensured the confidentiality of personal data by implementing appropriate access controls, encryption, and other security measures. Access to personal data is restricted to authorized personnel only, and data is transmitted and stored in an encrypted format.
Integrity
The Data Processor has ensured the integrity of personal data by implementing appropriate measures to prevent unauthorized modification or deletion of data. This includes implementing access controls, backup and recovery procedures, and monitoring mechanisms to detect any unauthorized modifications.
Availability
The Data Processor has ensured the availability of personal data by implementing appropriate measures to prevent system downtime or service interruptions. This include implementing redundant systems, backup and recovery procedures, and monitoring mechanisms to detect any system or service failures.
Resilience
The Data Processor has ensured the resilience of processing systems and services by implementing appropriate measures to prevent or mitigate the impact of security incidents or disruptions. This includes implementing disaster recovery procedures, incident response plans, and business continuity plans.
Pseudonymization
The Data Processor pseudonymize personal data to the extent possible, while ensuring that the purpose of the processing is not compromised. The Data Processor has ensured that the personal data is pseudonymized as soon as practicable after collection and that the pseudonymization is maintained throughout the processing. The Data Processor has implemented industry-standard pseudonymization techniques that make it difficult or impossible to identify an individual based on the pseudonymized data. The techniques include the use of encryption, tokenization, or other techniques that ensure the original data cannot be linked to the pseudonymized data.
System configuration, monitoring and logging
Monitoring
The Data Processor has implemented monitoring and logging mechanisms to detect any unauthorized access or transmission of personal data. The monitoring is implemented using industry-standard protocols and security measures.
Logging
The Data Processor has defined the events that need to be logged. These events include, but are not limited to, user login and logout, data access, data modification, data deletion, and system events. The Data Processor has ensured that each event is time-stamped with an accurate date and time. The Data Processor has ensured that the logs contain relevant information about the events that occurred. This information may include, but is not limited to, the event type, the date and time of the event, the user ID, and the IP address of the user. The Data Processor has implemented appropriate access controls to prevent unauthorized access to event logs.
Secure default Configuration
The Data Processor has ensured that systems and services are configured securely to prevent unauthorized access, modification, or deletion of personal data. The system configurations include security settings, such as firewalls, antivirus software, encryption, and access controls. The Data Processor has ensured that the default configuration of the systems is secure and compliant with applicable data protection laws and regulations. The default configurations include security settings and access controls that are appropriate for the processing of personal data.
Change Management
The Data Processor has implemented a change management process to ensure that any changes to the system configuration are reviewed and approved before implementation. The change management process shall include testing and documentation to ensure that the changes do not introduce security vulnerabilities or affect the confidentiality, integrity, or availability of personal data.
IT security governance and management
IT Governance
The Data Processor has establish and maintains an IT governance framework to ensure that IT operations are aligned with business objectives and comply with applicable data protection laws and regulations. This includes policies and procedures for IT governance, risk management, and compliance.
IT Security Management
The Data Processor has establish and maintains an IT security management framework to ensure the security of personal data. This includes policies and procedures for IT security management, security incident management, and business continuity planning.
IT Security Roles and Responsibilities
The Data Processor has defined and assigned IT security roles and responsibilities to ensure that personal data is secured and protected. This include designating a Data Processing responsible or Information Security Officer (ISO) to oversee and manage the IT security framework.
Risk Assessment
The Data Processor conduct periodic risk assessments to identify and assess potential risks to the confidentiality, integrity, availability, and resilience of processing systems and services. Based on the risk assessment, appropriate measures are implemented to mitigate or eliminate the identified risks.
Incident Management
The Data Processor has establish and maintains an incident management framework to ensure the timely detection and response to security incidents. This includes incident reporting procedures, incident investigation, and remediation procedures.
Incident response
The Data Processor has an incident response plan in place to address any security incidents related to the transmission of personal data. The incident response plan is implemented using industry-standard protocols and security measures.
Confidentiality Agreements
The Data Processor has required all users who have access to personal data to sign a confidentiality agreement. The confidentiality agreement specifies the obligations of the user regarding the confidentiality and security of personal data.
Staff training and awareness
Data Protection Laws and Regulations
The Data Processor provides training on applicable data protection laws and regulations, including the General Data Protection Regulation (GDPR) and how it applies to the processing of personal data.
Data Protection Policies and Procedures
The Data Processor provides training on data protection policies and procedures, including those related to data retention, data access, and data security. This includes ensuring that staff are aware of the data protection impact assessments that have been conducted and the measures that have been put in place to mitigate risks.
Cybersecurity
The Data Processor provides training on cybersecurity best practices, including the use of strong passwords, the importance of not clicking on suspicious links, and the need to keep software up to date.
Incident Response
The Data Processor provides training on incident response procedures, including how to identify and report potential data breaches or security incidents, and how to respond to them. This includes training on the relevant reporting requirements and timelines.
Certification of processes and products
Compliance with Standards
The Data Processor has ensured that processes and products comply with applicable data protection laws and regulations, industry standards, and best practices. This include obtaining certification from recognized third-party certification bodies.
Third-Party Certification
The Data Processor and/or sub data processors will obtain third-party certifications to demonstrate compliance with applicable data protection laws and regulations, industry standards, and best practices. This includes certifications such as ISO 27001 for information security management, SOC 2 for security, availability, processing integrity, confidentiality, and privacy, or other relevant certifications.
Vendor Management
The Data Processor has ensured that their vendors and third-party service providers are also certified and compliant with applicable data protection laws and regulations, industry standards, and best practices. This include obtaining certifications from vendors or requiring that vendors undergo regular audits to demonstrate compliance.
Continuous Improvement o
The Data Processor continuously reviews and improves its processes and products to ensure that they remain compliant with applicable data protection laws and regulations, industry standards, and best practices. This include conducting regular risk assessments, implementing new security measures, and updating policies and procedures to reflect changes in the regulatory landscape.