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Data processor agreement

  1. 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 partiesʼ 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 data processorʼs cloud based GDPR soware tool, 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. Four appendices are attached to the Clauses and form an integral part of the Clauses.
    5. 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.
    6. Appendix B contains the data controllerʼs conditions for the data processorʼs use of sub-processors and a list of sub- processors authorized by the data controller.
    7. Appendix C contains the data controllerʼs 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.
    8. Appendix D contains provisions for other activities which are not covered by the Clauses.
    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.
  2. 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 others, for ensuring that the processing of personal data, which the data processor is instructed to perform, has a legal basis.
  3. 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. The data processor shall inform the data controller of this legal requirement prior to the processing unless that requirement/law prohibits such information on important grounds of public interest. 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.
    3. The data processor cannot condition the full and unlimited compliance with the data controller’s instruction on the data controller’s payment of outstanding invoices etc., and the data processor has no right of retention in the personal data.
  4. 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 processorʼs 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 processorʼs authority are subject to the abovementioned confidentiality.
    3. If the data processor is a legal entity, these Clauses apply to any of the data processor’s employees and others, and the data processor warrants that the employees and others with access to the personal data, comply with the Agreement.
    4. The data processor must limit the access to the personal data to persons for whom access to said data is necessary to fulfill the data processor’s obligations towards the data controller.
    5. The obligations of the data processor under Clause 4 shall persist without time limitation and regardless of whether the cooperation of the Parties has been terminated.
  5. 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 organizational measures to ensure a level of security appropriate to the risk.
    2. 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:
  • pseudonymisation and encryption of personal data;
  • the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  • the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
  • a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
  1. 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.
  2. Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controllerʼs obligations pursuant to Articles 32 GDPR, by inter alia providing the data controller with information concerning the technical and organizational 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 controllerʼs obligation under Article 32 GDPR.
  3. 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
  1. 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 fulfillment of the Clauses without the prior general written authorisation of the data controller.
    3. The data processor has the data controllerʼs general authorisation for the engagement of sub-processors. The data processor shall in writing inform the data controller of any intended changes concerning the addition or replacement of sub- processors at least 30 days in advance, thereby giving the data controller the opportunity to reasonably object within 30 days to such changes prior to the engagement of the concerned sub-processor(s). In case of an objection from the data controller, which the data processor cannot meet the content of, the agreement between the Parties will be considered terminated by the data controller and all charges for the services that have been prepaid by the data controller shall be repaid. The list of sub-processors already authorized 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 organizational 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 controllerʼs 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 fulfill his data protection obligations, the data processor shall remain fully liable to the data controller as regards the fulfillment 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.
  2. Transfer of data to third countries or international organizations
    1. Any transfer of personal data to third countries or international organizations 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 organizations, 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:
  • transfer personal data to a data controller or a data processor in a third country or in an international organization
  • transfer the processing of personal data to a sub-processor in a third country
  • have the personal data processed in by the data processor in a third country
  1. The data controllerʼs 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.
  2. 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.
  3. If the data controller in the instructions in Appendix C.6 has given permission to a transfer of personal data to a third country, the data processor must ensure that the described legal basis for the transfer, e.g. Standard Contractual Clauses as referred to in Article 46(2)(c) and (d) GDPR, have been concluded between the relevant Parties and that a transfer impact assessment has been performed and shared with the data controller.
  4. 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 organizational measures, insofar as this is possible, in the fulfillment of the data controllerʼs obligations to respond to requests for exercising the data subjectʼs 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 controllerʼs compliance with:
  • the right to be informed when collecting personal data from the data subject
  • the right to be informed when personal data have not been obtained from the data subject
  • the right of access by the data subject
  • the right to rectification
  • the right to erasure (ʻthe right to be forgottenʼ)
  • the right to restriction of processing
  • notification obligation regarding rectification or erasure of personal data or restriction of processing
  • the right to data portability
  • the right to object
  • the right not to be subject to a decision based solely on automated processing, including profiling
  1. In addition to the data processorʼs 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:
  • The data controllerʼs 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 (the Danish Data Protection Agency), unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;
  • the data controllerʼs 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;
  • the data controllerʼs 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);
  • the data controllerʼs obligation to consult the competent supervisory authority (the Danish Data Protection Agency), 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.
  1. The parties shall define in Appendix C the appropriate technical and organizational 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.
  2. All assistance provided by the data processor to the data controller following from the above provisions of chapter 9, including the reference to section 6.3, shall be subject to payment of a reasonable service fee at DKK 750 pr. hour to the data processor. If the data subject has requested the information from the data processor directly the data controller shall not pay for the assistance.
  3. The data processor must without undue delay aer receipt of a request directly from the data subject or from a third party related to Chapter III GDPR notify the data controller in writing.
  4. Notification of personal data breach
    1. In case of any personal data breach, the data processor shall, without undue delay aer having become aware of it, notify the data controller of the personal data breach or that a failure to comply with Clause 4.2 and 4.3 has occurred.
    2. The data processorʼs notification to the data controller shall, if possible, take place as soon as feasible after the data processor has become aware of the personal data breach to enable the data controller to comply with the data controllerʼs 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 controllerʼs notification to the competent supervisory authority:
  • 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;
  • the likely consequences of the personal data breach;
  • 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.
  1. 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.
  2. All assistance provided by the data processor to the data controller following from the above provisions of this chapter shall be subject to payment of a reasonable service fee at DKK 1,500 pr. hour to the data processor, unless the breach was caused due to circumstances under the control of the data processor.
  1. Erasure and return of data
    1. On termination of the provision of personal data processing services, the data processor shall, at the choice of the data controller, 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 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.
    2. 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.
  2. 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. At the data controllerʼs request, the data processor may provide such information to the data Controller once a year to ensure that the data processor has taken the necessary technical and organizational security measures. The data processor can present its most recently updated procedures only if these are not dated more than one year prior to the request. Any further requirements from the data controller can be met by the data controller upon the data controllerʼs covering of all costs related to such fulfilments.
    2. Procedures applicable to the data controllerʼs 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 controllerʼs and data processorʼs facilities, or representatives acting on behalf of such supervisory authorities, with access to the data processorʼs physical facilities on presentation of appropriate identification.
  3. The partiesʼ agreement on other terms
    1. The parties may agree to 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.
  4. Commencement and termination
    1. The Clauses shall become effective on the date of both partiesʼ 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. Signatures
    1. The parties e-signed the Standard Contractual Clauses via Contractbook.
  6. Data controller and data processor contacts/contact points
    1. The parties may contact each other using the following contacts/contact points:
    2. The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.
  7. 4.16 Governing law and jurisdiction
    1. The Clauses are subject to Danish law.
    2. Any claim or dispute arising from or in connection with the Clauses must be settled by a competent court of first instance in Denmark.

  1. Appendix A
  • Information about the processing
  1. The purpose of the data processorʼs processing of personal data on behalf of the data controller is:
    1. The processing allows the data controller to use the cloud based online GDPR service (SaaS), which is owned and administered by the data processor, for the purpose of collecting and processing the data controllerʼs administration of its internal compliance programme.
  2. The data processorʼs processing of personal data on behalf of the data controller shall mainly pertain to (the nature of the processing):
    1. The processing of data includes confidential business information regarding the course of business and risk management of the data controller. The service provided by the data processor is an online tool, which makes it possible for the data controller to import, maintain and develop the internal compliance programme. As a result, it is necessary to create user profiles in the online service for all relevant employees and project managers of the data controller. Such user profiles include the processing of personal data of the employees of the data controller. The online tool may – if chosen solely by the data controller – also be used as a monitoring tool of the compliance programme, including user statistics of the data subjects.
  3. The processing includes the following types of personal data about data subjects:
    1. Name, e-mail, telephone number, job title, signature, statistics for use of the service and profile pictures (optional for each user).
  4. Processing includes the following categories of data subject:
    1. Data controllerʼs:
  • Employees
  • Representatives from business partners / suppliers who are all secondary characters to the purpose of the activities.
  1. The data processorʼs processing of personal data on behalf of the data controller may be performed when the Clauses commence. Processing has the following duration:
    1. The processing is not limited in time and takes place until termination of the Agreement in accordance with the terms hereof.

  1. Appendix B
  • Authorized sub-processors
  1. Approved sub-processors
    1. On commencement of the Clauses, the data controller authorizes the engagement of the sub-processors:
UpCloud Oy
Further information is available at: 
https://upcloud.com/privacy-policy 		Aleksanterinkatu 15 B, 7th floor00100 Helsinki, FinlandCloud-service 
Database and webserver
Amazon Web Services EMEA SARL
Further information is available at: 
https://d1.awsstatic.com/legal/aws-gdpr/AWS_GDPR_DPA.pdf 		38 avenue John F. KennedyL-1855 LuxembourgCloud-service
Document storage
  1. First and foremost, it is important to note that the level of personally identifiable data inserted into the Complyon system is minimal, as the service mainly operates with metadata (that is, descriptions of dataflows). Data is inputted by the customer itself. The data processor agreement ensures that no inappropriate data is uploaded to the system. Only name and email address are mandatory fields in the system. Telephone numbers may be added by the customer admin user; however, profile pictures can only be added by the end user itself.
  2. Complyon continuously follows the development within the market when it comes to data transfers, especially those issued from official EU bodies and case law. Complyon uses its own software for mapping and documentation purposes and follows the EDPB guidelines as well as other relevant officially issued papers regarding data transfers and data protection, closely. In relation to the Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data adopted on 10 November 2020, Complyon follows the guidelines in all possible matters. Specifically, the roadmap of applying the principle of accountability to data transfers in practice. Complyon recognizes the state of the use of U.S. cloud providers in the light of the European Court of Justice judgment C-311/18 also known as Schrems II can result in the use of American hosting services being troublesome and for now concludes that with following of EDPB guidelines and other internal implemented measurements, as;
  • Data being stored on data centers located within the EU. Minimization of personal data being stored and being strongly encrypted before transmission. Encryption conforming to being industry standard. Implementation of encryption algorithm soundly by properly maintained software as well as verified by certifications held by AWS; and
  • Further supplementary measures include AWS commitment issued in their supplementary addendum in Annex E which include challenging any order to disclose data to public authorities and provide minimum amount of information as well as promptly notify the customers; the use of the Complyon system is safe for clients to use. Any changes to assessments will always be communicated to clients as well as any questions are welcomed.

  1. Appendix C
  • Instruction pertaining to the use of personal data
  1. The subject of/instruction for the processing
    1. The data processorʼs processing of personal data on behalf of the data controller shall be carried out by the data processor performing the following:
    2. Administration and hosting of employee user profiles created by the data controller in the cloud based online GDPR service (SaaS), which is owned and administered by the data processor, for the purpose of collecting and processing the data controllerʼs administration of its internal compliance programme.
    3. Hosting of policies, work flows and contracts which may include personal information in the form of contact information of data controllerʼs business partners or similar.
  2. Security of processing
    1. The level of security shall take into account:
    2. Personal information stored in the cloud based online GDPR service (SaaS) is business-oriented contact information such as name, email address, phone number and job-title.
    3. The data processor shall hereaer be entitled and under obligation to make decisions about the technical and organizational security measures that are to be applied to create the necessary (and agreed) level of data security.
    4. Upon entering the agreement, the data controller has accepted the IT-security measures implemented by the data processor through its sub-data processors, including the details provided in Appendix B and as further described in the IT- policy of the data processor.
  3. Assistance to the data controller
    1. The data controller understands and acknowledges that the GDPR soware tool is a cloud based solution to which the data controller has administrative rights. The data processor shall insofar as this is possible assist the data controller in accordance with Clause 9.1. and 9.2 and data processorʼs it-security policy (Appendix E).
  4. Storage period/erasure procedures
    1. Personal data is stored for the duration of the agreement.
    2. 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 – are the signature of the contract – has modified the data controllerʼs original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the Clauses.
  5. Processing location
    1. Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controllerʼs prior written authorisation:
  • The business address of data processor
  • The remote workplaces used by data processorʼs employees in accordance with the security standards described in the it-policy.
  • The cloud servers of sub-processors as described in Appendix B.
  1. Instruction on the transfer of personal data to third countries
    1. 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.
  2. Procedures for the data controllerʼs audits, including inspections, of the processing of personal data being performed by the data processor
    1. The data processor shall obtain an ISAE 3402 declaration 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.
    2. The declaration shall without undue delay be submitted to the data controller for information once a year. The data controller may contest the scope and/or methodology of the report and may in such cases request a new audit/inspection under a revised scope and/or different methodology at the sole expense of data controller, cf. Clause 12.1.
    3. Based on the results of such an audit/inspection, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.
    4. The data controller or the data controllerʼs 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.
  3. Procedures for audits, including inspections, of the processing of personal data being performed by sub- processors
    1. With reference to the sub-processors listed in Appendix B.
    2. The data processor shall once a year and in connection with its own obligations as described in section C.7 above, obtain an audit report from an independent third party concerning the sub-processor’s compliance with the GDPR.
    3. The data controller approves that the following types of auditorʼs report may be used in compliance with the Clauses:
  • the certificates issued in relation to the ISO 27001 certification, the ISO 27017 certification and the ISO 27018 certification (or the certifications or other documentation evidencing compliance with such alternative standards as are substantially equivalent to ISO 27001, ISO 27017 and ISO 27018) and;
  • the System and Organization Controls (SOC) 1 Report, the System and Organization Controls (SOC) 2 Report and the System and Organization Controls (SOC) 3 Report (or the reports or other documentation describing the controls implemented by AWS that replace or are substantially equivalent to the SOC 1, SOC 2 and SOC 3)