Data Processing Agreement (.com)_previous

For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)

between

ONLINECITY.IO ApS
Buchwaldsgade 50
5000 Odense C, Denmark
VAT nr.: DK-27364276

(the data processor) and

 

(the data controller)

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. 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 SMS Gateway (hereinafter “GatewayAPI”), 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. 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.

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 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. 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.

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 shall 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.

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:

• 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 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.

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 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. 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.

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:

• 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

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.

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:

• 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 (‘the right to be forgotten’)
• the right to restriction of processing g. 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

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:

• 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;
• 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;
• 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);
• 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.

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 or within 24 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 com petent 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:

• 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.

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.

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.

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.

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.

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

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.

A.1. The purpose of the data processor’s processing of personal data on behalf of the data controller is:

• For displaying message logs of both sent and possibly received messages and delivery message for sent messages

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):

• Storage for 30 days

A.3. The processing includes the following types of personal data about data subjects:

• Telephone number, message content (and depending on this possible information such as member numbers, subscription number numbers, subscription types, appointment times, etc.) sender name / number

A.4. Processing includes the following categories of data subject:

• Customers, partners, employees

A.5. Until termination of the cooperation in the event of termination of this agreement or user account, in case of violation of alm. terms of use or in the event of in case of violation of the general terms of use or in the event of prolonged inactivity of the user account (see “Terms & Conditions” for details).

B.1. Approved sub-processors

On commencement of the Clauses, the data controller authorises the engagement of the following sub-processors:

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. The data processor shall not be entitled – without the data controller’s explicit written authorisation – to engage a sub-processor for a ‘different’ processing than the one which has been agreed upon or have another sub-processor perform the described processing.

B.2. Prior notice for the authorisation of sub-processors

OnlineCity sends a notification when changing sub-processors to the data controller 30 days before the change, and considers the lack of feedback of the notification as approval of the sub-processor.

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:

• Sending and receiving SMS via SMS-API gateway as well as partners’ SMS-API gateways.

C.2. Security of processing

The processing includes no personal data covered by the Data Protection Regulation Article 9 on “special categories of personal data”, for which reason a “low level of security” must be established.

The level of security shall take into account:

• Ensure that login and password procedures, firewall, antivirus software, and strong encryption of personal data is maintained
• Ensure that only employees with work-related purposes have access to personal data
• Store data storage media properly so that they are not accessible to third Parties
• Ensure that buildings and systems used for data processing are secure, and that only high-quality hardware and software is used, which is constantly updated
• Ensure that employees receive adequate instructions and guidelines for the processing of personal data. The data processor is required to ensure that the employees involved in the processing of personal data are familiar with the security requirements
• Ensure that employees who are authorized to process personal data have entered into confidentiality agreements or are subject to the necessary statutory confidentiality obligation
• Ensure that data is used solely on behalf of the Data Controller and that the Data Processor cannot dispose of the information for his own purposes, including commercial use

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:

• The data processor anonymises the recipient number (last 4 digits), message content and sender ID of SMSs 30 days after the message is sent. For overcharged SMSs, the data is stored for 6 months so that we can process refund requests in a timely manner. Thereafter, this personal data is completely anonymised.
• Establishment, maintenance and annual testing of the contingency plan as well as regular backup of personal information, as well as 24/7 monitoring of the operating systems.
• Annual review of the procedures included in the procedures included as a control area in ISAE 3000 company audit, which is carried out annually.
• Access to personal information via the Internet only via authorized users and through encrypted and / or secure connection, ie. HTTPS, TLS 1.2, etc., as well as logical access control as well as authorization and rights management.
• Confidentiality statements with employees and partners.
• Training and raising awareness about employee safety as well as sharing guidelines, procedure descriptions and policies
• Protection of personal information during transmission using highly encrypted Internet connections and e-mails.
• Firewall and antivirus software to protect against unauthorized access to personal information.
• Encryption of personal information during storage and secure storage of any. data storage media.
• Alarm preparedness, alarm security on doors, windows and entrances, and locking of printed personal information in safes, monitoring of common areas.
• Access to work-related systems for employees on external communication connections, eg at home or in public places, only via encrypted and secure Internet connections, TLS 2.1 as a minimum.
• Logging of systems, databases and networks, ie. of logins and transmissions via API as well as access to database with personal information.

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:

• The Data Controller has put in place policies and procedures to ensure that OnlineCity can assist the data controller in fulfilling its obligation to respond to requests for the exercise of data subjects’ rights.
• The Data Processor has put in place policies and procedures to ensure that OnlineCity can assist the data controller in ensuring compliance with the obligations set out in Article 32 on processing security, Article 33 on notification and notification of breaches of personal data security, and Articles 34 – 36 on impact assessments.
• Data Processor Introduced policies and procedures that ensure that OnlineCity can make all information necessary to demonstrate compliance with data processor requirements available to the data controller.
• The Data Processor also provides for and contributes to audits, including inspections carried out by the data controller or others authorized by the data controller.

C.4. Storage period/erasure procedures

Personal information is stored for a maximum of 30 days after shipment or receiving SMS, after which they are deleted by the data processor.

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:

• In the Data Processor’s premises or at the Data Processor’s sub-data processors. The head office for the data processor, ONLINECITY.IO ApS, is Buchwaldsgade 50, 5000 Odense C, with other offices in Copenhagen and Danneskiold-Samsøe-Alle 41, 1434 København K and C. A. Olesens Gade 4, 9000 Aalborg. Sub-data processors have an address, cf. Appendix B, section 1.

C.6. Instruction on the transfer of personal data to third countries

Personal data may only be transferred to secure third countries or international organizations or third countries resp. international organizations with a valid legal basis and only for necessary purposes. However, personal data must in any case be sought to remain within the EU.

In addition, personal data may be transferred to insecure third countries, but only on the basis of the entered-into EU standard contractual clauses (SCC) and additional measures, as mentioned in the judgment of the European Court of Justice in the Schrems II case, in order to preserve and support giving the data subjects the same level of protection as under the GDPR as well as the same rights under the European essential guarantees, ie The EU Charter of Human Rights and the EU Charter of Fundamental Rights.

For any third country transfers within the sense of Chapter V of the GDPR, the EU standard contractual provisions will be used as a transfer mechanism.

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. By entering into this Data Processing Agreement, the data controller is aware that they are specifically instructing the data processor to use the sub-processor(s) defined in appendix B and that this sub-processor(s) has been instructed to use the mentioned data centers.

As the sub-processor(s) is effectively owned and/or headquartered in a third country, the data controller is aware that these instructions may constitute (directly or indirectly) an illegal instruction in relation to GDPR Chapter V. Therefore, the data controller must ensure that they have taken appropriate actions and precautions to justify the use of the sub-processor(s) mentioned in appendix B and the subsequent risks related to potential transfers to unsecure third countries, e.g. the U.S.A.

The data controller is made aware that they have the possibility to choose another product/set-up, made available and recommended by the data processor – GatewayAPI.eu -, where sub-processor(s) are wholly owned and located within the EU, but instead chooses to instruct the data processor to use the sub-processor(s) mentioned in appendix B.

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 shall yearly at the Data Processor’s expense obtain an audit 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 parties have agreed that the following types of audit report may be used in compliance with the Clauses:

• ISAE 3000

The audit report shall without undue delay be submitted to the data controller for information. The data controller may contest the scope and/or methodology of the report and may in such cases request a new audit under a revised scope and/or different methodology.

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.

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.

The data controller’s costs, if applicable, relating to physical inspection shall be defrayed by the data controller. The data processor shall, however, be under obligation to set aside the resources (mainly time) required for the data controller to be able to perform the inspection.

If you have a question, concern or complaint regarding this Data Processing Agreement or our handling of your information, please send an email.

Contact us here: gdpr@gatewayapi.com