Data Processor Agreement
Standard Contractual Clauses
For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR) between
Customer (as specified in the Order) (the data controller)
and
NorthQ Energy Solutions ApS (as specified in the Order) (the data processor)
each a ‘party’; together ‘the parties’
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.
1. Table of Contents
2. Preamble
3. The rights and obligations of the data controller
4. The data processor acts according to instructions
5. Confidentiality
6. Security of processing
7. Use of sub-processors
8. Transfer of data to third countries or international organizations
9. Assistance to the data controller
10. Notification of personal data breach
11. Erasure and return of data
12. Audit and inspection
13. The parties’ agreement on other terms
14. Commencement and termination
15. Data controller and data processor contacts/contact points
Appendix A Information about the processing
Appendix B Authorized sub-processors
Appendix C Instruction pertaining to the use of personal data
Appendix D The parties’ terms of agreement on other subjects
2. Preamble
1. These Contractual Clauses (the Clauses) set out the rights and obligations of the data controller and the data processor, when processing personal data on behalf of the data controller.
2. The Clauses have been designed to ensure the parties’ compliance with Article 28(3) of Regulation 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).
3. In the context of the provision of the services in accordance with the main agreement between the parties (the “Order"), the data processor will process personal data on behalf of the data controller in accordance with the Clauses.
4. The Clauses shall take priority over any similar provisions contained in other agreements between the parties.
5. Four appendices are attached to the Clauses and form an integral part of the Clauses.
6. Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.
7. Appendix B contains the data controller’s conditions for the data processor’s use of sub-processors and a list of sub-processors authorized by the data controller.
8. Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum security measures to be implemented by the data processor and how audits of the data processor and any sub-processors are to be performed.
9. Appendix D contains provisions for other activities which are not covered by the Clauses.
10. The Clauses along with appendices shall be retained in writing, including electronically, by both parties.
11. The Clauses shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.
3. The rights and obligations of the data controller
1. The data controller is responsible for ensuring that the processing of personal data takes place in compliance with the GDPR (see Article 24 GDPR), the applicable EU or Member State[1] data protection provisions and the Clauses.
2. The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
3. The data controller shall be responsible, among other, for ensuring that the processing of personal data, which the data processor is instructed to perform, has a legal basis.
4. The data processor acts according to instructions
1. The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or Member State law to which the processor is subject. Such instructions shall be specified in appendices A and C. Subsequent instructions can also be given by the data controller throughout the duration of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically, in connection with the Clauses.
2. The data processor shall immediately inform the data controller if instructions given by the data controller, in the opinion of the data processor, contravene the GDPR or the applicable EU or Member State data protection provisions.
5. Confidentiality
1. The data processor shall only grant access to the personal data being processed on behalf of the data controller to persons under the data processor’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need-to-know basis. The list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.
2. The data processor shall at the request of the data controller demonstrate that the concerned persons under the data processor’s authority are subject to the abovementioned confidentiality.
6. Security of processing
1. Article 32 GDPR stipulates that, 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, the data controller and data processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
The data controller shall evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. Depending on their relevance, the measures may include the following:
a. Pseudonymisation and encryption of personal data;
b. the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services;
c. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
d. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
2. According to Article 32 GDPR, the data processor shall also – independently from the data controller – evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. To this effect, the data controller shall provide the data processor with all information necessary to identify and evaluate such risks.
3. Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controller’s obligations pursuant to Articles 32 GDPR, by inter alia providing the data controller with information concerning the technical and organisational measures already implemented by the data processor pursuant to Article 32 GDPR along with all other information necessary for the data controller to comply with the data controller’s obligation under Article 32 GDPR.
If subsequently – in the assessment of the data controller – mitigation of the identified risks requires further measures to be implemented by the data processor, than those already implemented by the data processor pursuant to Article 32 GDPR, the data controller shall specify these additional measures to be implemented in Appendix C.
7. Use of sub-processors
1. The data processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).
2. The data processor shall therefore not engage another processor (sub-processor) for the fulfilment of the Clauses without the prior general written authorisation of the data controller.
3. The data processor has the data controller’s general authorisation for the engagement of sub-processors. The data processor shall inform in writing the data controller of any intended changes concerning the addition or replacement of sub-processors at least thirty (30) days in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). Longer time periods of prior notice for specific sub-processing services can be provided in Appendix B. The list of sub-processors already authorised by the data controller can be found in Appendix B.
4. Where the data processor engages a sub-processor for carrying out specific processing activities on behalf of the data controller, the same data protection obligations as set out in the Clauses shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Clauses and the GDPR.
The data processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the data processor is subject pursuant to the Clauses and the GDPR.
5. A copy of such a sub-processor agreement and subsequent amendments shall – at the data controller’s request – be submitted to the data controller, thereby giving the data controller the opportunity to ensure that the same data protection obligations as set out in the Clauses are imposed on the sub-processor. Clauses on business related issues that do not affect the legal data protection content of the sub-processor agreement, shall not require submission to the data controller.
6. The data processor shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of the data processor – the data controller shall be a third-party beneficiary to the sub-processor agreement and shall have the right to enforce the agreement against the sub-processor engaged by the data processor, e.g. enabling the data controller to instruct the sub-processor to delete or return the personal data.
7. If the sub-processor does not fulfil his data protection obligations, the data processor shall remain fully liable to the data controller as regards the fulfilment of the obligations of the sub-processor. This does not affect the rights of the data subjects under the GDPR – in particular those foreseen in Articles 79 and 82 GDPR – against the data controller and the data processor, including the sub-processor.
8. Transfer of data to third countries or international organisations
1. Any transfer of personal data to third countries or international organisations by the data processor shall only occur on the basis of documented instructions from the data controller and shall always take place in compliance with Chapter V GDPR.
2. In case transfers to third countries or international organisations, which the data processor has not been instructed to perform by the data controller, is required under EU or Member State law to which the data processor is subject, the data processor shall inform the data controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
3. Without documented instructions from the data controller, the data processor therefore cannot within the framework of the Clauses:
a. transfer personal data to a data controller or a data processor in a third country or in an international organization
b. transfer the processing of personal data to a sub-processor in a third country
c. have the personal data processed in by the data processor in a third country
4. The data controller’s instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.
5. The Clauses shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and the Clauses cannot be relied upon by the parties as a transfer tool under Chapter V GDPR.
9. Assistance to the data controller
1. Taking into account the nature of the processing, the data processor shall assist the data controller by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the data controller’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR.
This entails that the data processor shall, insofar as this is possible, assist the data controller in the data controller’s compliance with:
a. the right to be informed when collecting personal data from the data subject
b. the right to be informed when personal data have not been obtained from the data subject
c. the right of access by the data subject
d. the right to rectification
e. the right to erasure (‘the right to be forgotten’)
f. the right to restriction of processing
g. notification obligation regarding rectification or erasure of personal data or restriction of processing
h. the right to data portability
i. the right to object
j. the right not to be subject to a decision based solely on automated processing, including profiling
2. In addition to the data processor’s obligation to assist the data controller pursuant to Clause 6.3., the data processor shall furthermore, taking into account the nature of the processing and the information available to the data processor, assist the data controller in ensuring compliance with:
a. The data controller’s obligation to without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the competent supervisory authority, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;
b. the data controller’s obligation to without undue delay communicate 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;
c. the data controller’s 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);
d. the data controller’s obligation to consult the competent supervisory authority, 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 data controller to mitigate the risk.
3. The parties shall define in Appendix C the appropriate technical and organisational measures by which the data processor is required to assist the data controller as well as the scope and the extent of the assistance required. This applies to the obligations foreseen in Clause 9.1. and 9.2.
10. Notification of personal data breach
1. In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the data controller of the personal data breach.
2. The data processor’s notification to the data controller shall, if possible, take place within 48 hours after the data processor has become aware of the personal data breach to enable the data controller to comply with the data controller’s obligation to notify the personal data breach to the competent supervisory authority, cf. Article 33 GDPR.
3. In accordance with Clause 9(2)(a), the data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, meaning that the data processor is required to assist in obtaining the information listed below which, pursuant to Article 33(3)GDPR, shall be stated in the data controller’s notification to the competent supervisory authority:
a. The nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
b. the likely consequences of the personal data breach;
c. 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.
4. The parties shall define in Appendix C all the elements to be provided by the data processor when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.
11. Erasure and return of data
1. On termination of the provision of personal data processing services, the data processor shall be under obligation – at the choice of the data controller - to delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so or to return all the personal data to the data controller and delete existing copies unless Union or Member State law requires storage of the personal data.
12. Audit and inspection
1. The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 and the Clauses and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.
2. Procedures applicable to the data controller’s audits, including inspections, of the data processor and sub-processors are specified in appendices C.7. and C.8.
3. The data processor shall be required to provide the supervisory authorities, which pursuant to applicable legislation have access to the data controller’s and data processor’s facilities, or representatives acting on behalf of such supervisory authorities, with access to the data processor’s physical facilities on presentation of appropriate identification.
13. The parties’ agreement on other terms
1. The parties may agree other clauses concerning the provision of the personal data processing service specifying e.g. liability, as long as they do not contradict directly or indirectly the Clauses or prejudice the fundamental rights or freedoms of the data subject and the protection afforded by the GDPR.
14. Commencement and termination
1. The Clauses shall become effective on the date of both parties’ signature.
2. Both parties shall be entitled to require the Clauses renegotiated if changes to the law or inexpediency of the Clauses should give rise to such renegotiation.
3. The Clauses shall apply for the duration of the provision of personal data processing services. For the duration of the provision of personal data processing services, the Clauses cannot be terminated unless other Clauses governing the provision of personal data processing services have been agreed between the parties.
4. If the provision of personal data processing services is terminated, and the personal data is deleted or returned to the data controller pursuant to Clause 11.1. and Appendix C.4., the Clauses may be terminated by written notice by either party.
5. Signature
On behalf of the data controller and data processor
The contact persons of the parties’ are the usual contact person in relation to the Order.
15. Data controller and data processor contacts/contact points
1. The parties may contact each other using the following contacts/contact points:
a. The data processor’s contact point: dpo@northq.com,
b. The data controller’s contact point is the person with whom the data processor usually corresponds.
2. The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.
The Clauses are attached to the Order and shall be considered as an incorporated part of the Order. The Clauses are entered into upon conclusion of the Order.
Appendix A Information about the processing
A.1. The purpose of the data processor’s processing of personal data on behalf of the data controller is:
The purpose is to provide the services in accordance with the Order.
A.2. The data processor’s processing of personal data on behalf of the data controller shall mainly pertain to (the nature of the processing):
The data processor’s processing of personal data on behalf of the data controller primarily concerns the collection, storage, systemizing, enriching, cleaning, anonymizing, transferring and deletion of personal data.
A.3. The processing includes the following types of personal data about data subjects:
The data processor must process the types of personal data to which the data controller directly or indirectly gives the data processor access to. The data processing may include the following types of personal data:
General personal data, cf. Article 6 of the General Data Protection Regulation
● Contact information (name, tenant number, address, email address, phone number)
● GPS-data
● Personal data relating to electricity-, gas-, heat- or water consumption (including costs and calculations in this regard)
● Personal data incoming from other climate sensors and personal data relating to the data controller’s buildings
● Personal data relating to Distribution Accounting billing (prepayment, square meters and ID of the flat etc.),
A.4. Processing includes the following categories of data subject:
The data processor must process the categories of data subjects to which the data controller directly and indirectly gives the data processor access to, which typically includes:
● Occupants/tenants of the data controller’s buildings
● Other persons to the extent such data is entrusted to the data processor
A.5. The data processor’s processing of personal data on behalf of the data controller may be performed when the Clauses commence. Processing has the following duration:
The Clauses shall be effective for the duration of the provisions of the services in accordance with the Order and shall terminate automatically when the data processor no longer processes personal data on behalf of the data controller as part of the services.
Appendix B Authorised sub-processors
B.1. Approved sub-processors
On commencement of the Clauses, the data controller authorises the engagement of the following sub-processors:
NAME
CVR/VAT/ID
ADDRESS
TYPE OF SERVICE AND DESCRIPTION OF PROCESSING
TRANSFER TO THIRD
COUNTRIES
IF YES: TRANSFER BASIS
STANDARD
TERMS
If applicable
amazon web services emea sarl
B186284
38 avenue john f. kennedy, l-1855 luxembourg
aws services used by supplier:
- aws lambda
- amazon simple storage service
- aws data transfer
- elastic load balancing
- amazon relational database service
- aws iot
- amazon elastic compute cloud
- amazon dynamodb
- amazon api gateway
- amazon simple notification service
- amazon route 53
- amazoncloudwatch
- amazon cloudfront
- aws key management service
- amazon virtual private cloud
- amazon simple email service
- aws glue
supplier chooses for all the data to be processed on the servers located in the eu, nonetheless aws standard data processing agreement states that personal data may be transferred to third countries in certain situations.
HTTPS://AWS.AMAZON.COM/LEGAL/ONLINE-DATA-PROCESSING-AGREEMENT/
Microsoft Ireland Operations Ltd
DK20812842
One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Ireland
Microsoft PowerBI
Supplier utilises the tool for the purpose of data visualisation.
Supplier chooses for all the data to be processed on the servers located in the EU, nonetheless Microsoft standard data processing agreement states that personal data may be transferred to third countries in certain situations.
Techem Danmark A/S
29416982
Trindsøvej 7 A-B
8000 Aarhus Denmark
Distribution accounting and Tenant consumption visualisation app, EED compliance; access to UNIK system and EG Bolig system
Consumption data for electricity, water and heat from all meters from apartments and common areas
No
Hococo ApS
39760061
Njalsgade 21G, 4.
2300 København S
Denmark
Tenant experience app, in which they display: Consumption data for electricity, water and heat from all meters from apartments, indoor climate sensors installed in the apartments, PV production
Wise Home A/S
37567906
Rugaardsvej 5
8680 Ry
Denmark
Distribution accounting and Tenant app, EED compliance; access to UNIK system and EG Bolig system
Consumption data for electricity, water and heat from all meters from apartments and common areas
No
Enyday APS
38675044
Sankt Annæ Plads 15A, 4.
1250 København K
Denmark
Electricity Accounting Distribution, Energy communities, Consumption visualisation app
Electricity consumption data from apartments and common spaces for visualisation and accounting purposes
No
Spaceflow s.r.o.
CZ 05184142
Italská 2581/67
120 00 Prague
Czech Republic
Tenant experience app in which they display: : Consumption data for electricity, water and heat from all meters from apartments, indoor climate sensors installed in the apartments, PV production
No
Upsite ApS
29853045
Lersø Parkallé 44, 3.
2100 København Ø
Denmark
Operation and maintenance plans: main meter consumption data, anonymised consumption data from apartments
No
ejendom.com aps
42340596
Langebrogade 3H, 3.
1411 København K
Denmark
Operation and maintenance plans: main meter consumption data, anonymised consumption data from apartments
No
The data controller shall on the commencement of the Clauses authorise the use of the abovementioned sub-processors for the processing described for that party.
B.2. Prior notice for the authorisation of sub-processors
The data processor's notice of any planned changes in terms of addition or replacement of sub-processors must be received by the data controller in accordance with the timeframe in Clause 7.3 before the addition or replacement is to take effect, as long as this is possible.
Regardless of the above, the data controller accepts that there may be situations with a specific need for such change in terms of addition or replacement of sub-processors with a shorter notice or immediately. In such situations, the data processor will notify the data controller of such change as soon as possible.
If the data controller has any objections to such changes, the data controller shall notify the data processor thereof without undue delay before such change is to take effect. The data controller may only object to such changes if the data controller has reasonable and specific grounds for such refusal.
In case of the data controller's objection, the data controller furthermore accepts that the data processor may be prevented from providing all or parts of the agreed services. Such non-performance cannot be ascribed to the data processor's breach. The data processor will maintain its claim for payment for such services, regardless if they cannot be provided to the data controller.
Appendix C Instruction pertaining to the use of personal data
C.1. The subject of/instruction for the processing
The data processor’s processing of personal data on behalf of the data controller shall be carried out by the data processor performing the following:
Delivery of the services as specified in the Order and the Clauses, including collection, storage, systemizing, enriching, cleaning, and deletion of personal data. Data processor may anonymize personal data and use these data for own purposes.
When the data controller appoints a third-party data processor, which requires that the data processor must share the data controller’s personal data, the data controller instructs the data processor to transfer personal data necessary for the provision of the services. The third-party data processor’s terms for such processing performed by such data processor will apply.
C.2. Security of processing
The level of security shall take into account that the data processor processes general non-sensitive personal data on behalf of the data controller.
The data processor implements appropriate technical and organisational measures to ensure a level of security appropriate to the risks associated with the processing activities that the data processor performs for the data controller.
The data processor shall hereafter be entitled and under obligation to make decisions about the technical and organisational security measures that are to be applied to create the necessary (and agreed) level of data security.
The data processor shall however – in any event and at a minimum – implement the following measures that have been agreed with the data controller:
● Personal data and user data is stored in different places with separate access control.
● Databases are encrypted so that the infrastructure provider does not have access to user data.
● The data processor has set access control to the databases for employees the way that only a minimum access to perform the duties is granted. Moreover, 2 step verification is enabled for all key services in which we process personal and user data.
● There is no direct access for 3rd parties to the databases. They need to go through layers of access control via API.
● In the platform, where the data is visualised, only parties designated by the data controller have private access. There is no public access to the visualisation.
● Employees are subject to a confidentiality obligation upon employment.
● Non-disclosure agreements are entered into between relevant third parties, who process personal data on behalf of the data controller.
● The data processor has an IT Security (Cybersecurity) policy as well as Development Good Practices Guide and Employee Handbook in place.
● The data processor has regular cybersecurity re-trainings.
● The security measures and protocols are updated on a regular basis. Potential risks are discussed during Risk Committee meetings. The data processor reviews on a regular basis the passwords security and reports from the antivirus system.
● The data processor uses encrypted communication/transmission protocols such as https and wireless MBUS encrypted telegrams.
● All personal data is encrypted at rest.
● The data processor has written procedures for the use of home/remote working.
C.3. Assistance to the data controller
The data processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the following technical and organisational measures:
At the specific request of the data controller, the data processor shall, taking into account the nature of the processing, assist the data controller as far as possible by appropriate technical and organizational measures in compliance with the data controller's obligation to respond to requests for data subjects' rights as stated in the data protection regulation.
If a data subject submits a request for the exercise of his or her rights to the data processor, the data processor shall notify the data controller hereof without undue delay.
Taking into account the nature of the processing and the information available to the data processor, the data processor shall, upon specific request, assist the data controller in ensuring compliance with the data controller's obligations in relation to:
● Implementation of appropriate technical and organizational measures
● Notification of personal data breach to the supervisory authority
● Notification of personal data breach to the data subject
● Conducting impact assessments
● Prior consultations with the supervisory authority
C.4. Storage period/erasure procedures
Upon termination of the provision of personal data processing services, the data processor shall either delete or return the personal data in accordance with Clause 11.1., unless the data controller – after the signature of the contract – has modified the data controller’s original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the Clauses.
C.5. Processing location
Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controller’s prior written authorisation:
Primarily from the data processor and the sub-processor’s locations including locations under their and their employees’ control. Additionally, the processing of personal data can take place from the data controller’s locations or at a location designated by the data controller.
C.6. Instruction on the transfer of personal data to third countries
The data processor is only allowed to transfer personal data to a country outside the European Union or EEA (a “third country”) or an international organisation located in a third country as further specified below.
The data controller may in addition hereto, by a subsequent written notice or agreement, specify an instruction or specific approval regarding transfer of personal data to a third country.
If the data controller does not in the Clauses or subsequently provide documented instructions pertaining to the transfer of personal data to a third country, the data processor shall not be entitled within the framework of the Clauses to perform such transfer.
C.6.1 Approval of transfer of personal data on the basis of an adequacy decision
With the Clauses, the data controller provides a general and prior approval (instruction) for the data processor to transfer personal data to third countries if the European Commission has determined that the third country/the relevant area/the relevant sector has an adequate level of protection.
For transfers to organisations in the United States, certified under the EU-U.S. Data Privacy Framework, the data processor has an obligation to ensure that sub-processors used under the Clauses meets the requirements under the framework and have the necessary certification.
C.6.2 Approval of transfer to specific recipients of personal data in third countries subject to appropriate safeguards
The data controller instructs the data processor to transfer personal data to third countries, when necessary, in order for the data processor to deliver the services in accordance with the Order when using the sub-processor(s), who transfer personal data to third countries specified in Annex B.1. Furthermore, the data processor shall be entitled to transfer personal data to third countries if the data controller’s acts result in such a transfer.
The data processor is entitled to ensure the necessary transfer basis, for example by using the Standard Contractual Clauses and thereby enter into the Standard Contractual Clauses with the relevant sub-processor. The data controller shall in so far as necessary assist the data processor on securing the transfer basis, including for example the Standard Contractual Clauses.
In case the European Commission completes new Standard Contractual Clauses subsequent to the formation of the original Standard Contractual Clauses, the data processor is authorised to renew, update and/or use the Standard Contractual Clauses in force from time to time.
The content of these Clauses shall not be deemed to change the content of such safeguards, incl. the Standard Contractual Clauses.
C.7. Procedures for the data controller’s audits, including inspections, of the processing of personal data being performed by the data processor
Pursuant to Articles 24 and 28 of the General Data Protection Regulation, the data controller is entitled and obliged to monitor the data processor's processing of personal data on behalf of the data controller. The data controller's monitoring of the data processor may consist in one of the following actions from the data controller and may only be carried out to a reasonable and necessary extent, and for up to once a year:
● Self-checking based on documents provided to the data controller by the data processor,
● Written inspection, or
● Physical inspection.
C.7.1 Self-checks
The data controller may ask questions regarding supervision to the data processor and the data controller can, at his or her request, access a range of documents for the purpose of self-checking for up to once a year, including:
● A description of the physical and organisational security measures at the data processor
● Risk assessment – of shared infrastructure (firewall, backup, etc.)
● IT security policy
C.7.2 Written inspection and physical inspection
The data controller or a representative of the data controller may choose to carry out an inspection either as a written inspection or as a physical inspection with the locations from which the data processor carries out the processing of personal data, including physical locations and systems used for or in connection with the processing. The inspection may be carried out by the data controller or a representative of the data controller and/or in cooperation with a third party. Such inspections may be carried out whenever the data controller deems it necessary. An inspection must be based on the data processor’s compliance with the General Data Protection Regulation, data protection regulations of other Union or national law and these Clauses, including but not limited to the security measures agreed between the parties.
Procedure and reporting of written inspection or physical inspection:
● The data controller shall contact the data processor by email with request for a written inspection and/or a physical inspection.
● At written inspections the data controller shall give notice to the data processor hereof without undue delay,
● At physical inspections the data controller shall arrange a date for the inspection in advance with the data processor.
● The data processor confirms receipt and confirms the date for such inspection.
● The inspection is made.
● The data controller drafts a report that is subsequently sent to the data processor.
● The data processor will review the draft report and provide potential comments to the data controller's observations (can be repeated several times).
● The final report is concluded by the data controller.
● The inspection is ended.
C.8. Procedures for audits, including inspections, of the processing of personal data being performed by sub-processors
The data processor will, on his own account, regularly supervise the data processor’s sub-processors compliance with the General Data Protection Regulation, data protection provisions of other EU-law or the national law of the Member States and these Clauses. The data processor makes use of a risk-based approach based on the best practice generally applied to such audits. This may include reviewing the statement of assurance, using questionnaires and other appropriate approaches.
Appendix D The parties’ terms of agreement on other subjects
D.1 - In general
In relation to the data processor's processing of personal data on behalf of the data controller, the parties have agreed on the specific terms outlined below.
In case of discrepancy between the Clauses and the terms laid down in this appendix D, appendix D shall take precedence.
D.2 – Consequences of the data controller’s unlawful instructions
The data controller is aware that the data processor depends on the data controller's instructions to which extent the data processor is entitled to use and process personal data on behalf of the data controller.
If the data controller’s instruction is considered as unlawful according to the data processor’s reasonable evaluation the data processor is able to end further processing than storage until the data controller gives supplementary instruction on whether the processed personal data once again can be processed legally or if the personal data shall be handed over or deleted. The data processor’s end of processing in such situations cannot lead to breach of these Clauses or the Order.
The data processor is not liable for any claims arising from the data processor’s acts or omissions to the extent such acts or omissions are a direct data processing activity exercised in accordance with the data controller's instructions and if the data processor is held liable or sanctioned the data controller shall hold the data processor harmless.
D.3 - Provisions regarding a beneficiary third party in connection to sub-processors
The parties have agreed that Clause 7.6 of the Clauses (as specified below) shall not apply between the parties.
Thus, the following text shall be deleted from the Clauses: "The data processor shall in his agreement with the sub-processor include the data controller as a third-party beneficiary in the event of the bankruptcy of the data processor to enable the data controller to assume the data processor's rights and invoke these as regards the sub-processor, e.g. so that the data controller is able to instruct the sub-processor to perform the erasure or return of data."
D.4 – Use of sub-processors supplying on standard terms
Regardless of Clause 7 it is emphasized that if the data processor uses a sub-processor, who provides services on its own terms, which the data processor cannot deviate from, the sub-processor's terms for such processing performed by such sub-processor will apply. If processing is subject to a sub-processor's terms, this will be specified via the list of sub-processors, and such standard terms will be forwarded to the data controller at the data controller’s request.
With these Clauses, the data controller accepts and instructs that such specific processing activities are based on the sub-processor's terms.
D.5 – Compensation
The data processor is entitled to receive reasonable payment for time spent as well as other direct costs incurred by the data processor relating to assistance and services provided by the data processor to the data controller. Such assistance and services may include but is not limited to assistance and service described in Clause 9, 10, 12, C.3 and C.7, changes to the instruction, cooperation with supervisory authorities etc. The data processor will without payment and within reasonable limits, answer specific supervisory questions that specifically relate to the processing carried out by the data processor.
The compensation is calculated on the basis of the time spent and the agreed hourly rates in the Order regarding the data processor’s provision of services to the data controller, and if no hourly rates have been agreed on, the data processor's current hourly rates will be applied, with the addition of any cost paid, including also cost to be paid by the data processor for the assistance of sub-processors.
If the data processor's assistance and/or service leads to claims for increased security measures to be observed in relation to agreement regarding the data processor’s provision of services to the data controller and appendix C, the data processor will, as far as possible, implement such additional security measures pursuant to further agreement with the data controller, provided that the data processor receives payment for such work. The data processor shall furthermore be entitled to receive payment for the implementation of other security measures if the data processor's ongoing evaluations leads to increased requirements for such security measures compared to the Clauses regarding the data processor’s provisions of services to the data controller. The data processor will introduce and implement such additional security measures pursuant to further agreement with the data controller.
Regardless of the above a party does not have the right to claim compensation for assistance, service or implementation of changes to the extent where such assistance or changes are a direct consequence of the party’s own breach of these Clauses.
D.6 – Limitation of liability
The limitation of liability in the Order applies to the data processor’s processing of the personal data under these Clauses, including with regard to Article 82 of the General Data Protection Regulation.
[1] References to ”Member States” made throughout the Clauses shall be understood as references to “EEA Member States”.