EXHIBIT A
DATA PROCESSING ADDENDUM
Standard Contractual Clauses
For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)
between
Customer
(as defined in the Order Form)
(the data controller)
and
Netop Business Solutions A/S
CVR 20077948
Bregnerødvej 127
3460 Birkerød
Denmark
(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 organisations.
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 Authorised sub-processors.
Appendix C Instruction pertaining to the use of personal data.
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 Netop Services, 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 authorised 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. The Clauses along with appendices shall be retained in writing, including electronically, by both parties.
10. 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.
[1] References to ”Member States” made throughout the Clauses shall be understood as references to “EEA Member States”.
4. The data processor act 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 require 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 two weeks in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The list of sub-processors already authorised by the data controller can be found in www.netop/com/legal/sub-processors.
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. 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 without undue delay 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 breach 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 to delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so unless Union or Member State law requires storage of the personal data.
The data processor commits to exclusively process the personal data for the purposes and duration provided for by this law and under the strict applicable conditions.
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
Signed in the Order Form.
15. Data controller and data processor contacts/contact points
1. The data controller may be contacted using the contacts/contact points set-out in the data processor’s customer platform. The data processor may be contacted by using the prevailing contact point of the DPO of the data processor.
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:
Remote access to the Host devices of the Data Controller.
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):
IP addresses may in certain instances be viewed by the Data Processor in connection with the transmission of data from the data controller to the host devices. Such IP addresses may include personal data.
A.3. The processing includes the following types of personal data about data subjects:
IP addresses may include names of employees of the Data Controller.
A.4. Processing includes the following categories of data subject:
Ordinary personal data (IP addresses)
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 duration of the Services.
Appendix B Authorized 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 | ADDRESS | DESCRIPTION OF PROCESSING |
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 Services set out in the Order Form.
C.2. Security of processing
The level of security shall take into account that the processing is limited in scope to transmission of IP addresses of Host and Guest, and only if the technical measures of the Customer does not exclude such transfers.
The data processor and its sub-processors are certified pursuant to ISO/IEC 27001, and the processing is carried out with a high level of security as set out in the GT&C.
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 with information on any data breach with the data processor in so far that the breach is caused by the data processor or any of its sub-processors. All other assistance will be invoiced on a time and materiel basis.
C.4. Storage period/erasure procedures
The personal data is not stored with the data processor.
C.5. Processing location
Processing of the personal data will take place at the locations listed on:
https://www.netop.com/legal/sub-processors
C.6. Instruction on the transfer of personal data to third countries
The data processor is instructed to process data on locations out-side the EU/EEA as set out in https://www.netop.com/legal/sub-processors. The data processor is free to choose legal basis for transfer of personal data in accordance with clause 7.4.
C.7. Procedures for the data controller’s audits, including inspections, of the processing of personal data being performed by the data processor
The data processor will annually present a general report from an independent third party concerning the data processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.
The report shall without undue delay be submitted to the data controller for information.
The data controller or the data controller’s representative shall in addition have access to inspect, including physically inspect, the places, where the processing of personal data is carried out by the data processor, including physical facilities as well as systems used for and related to the processing. Such an inspection shall be performed, when the data controller deems it required, and the data controller will be invoiced all cost pertaining to such inspections on a time and material basis.