Data Processing Agreement Between Client (Controller) and MyProduction AS (Processor)
(each a “Party”, collectively the “Parties”)
|DPA||This Data Processing Agreement.|
|Applicable Data Protection Law||All privacy laws and regulations in the country where Controller or Processor is registered, hereunder but not limited to GDPR.|
|GDPR||The EU’s General Data Protection Regulation. (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) which came into force in the EU on 25th of May 2018.|
|Cloud Service Agreement||The agreement between the Controller and the Processor under which the Processor provide the Cloud Services the processing forms a part of.|
|Controller||The legal entity determining, alone or jointly with others, the purpose for and the means of the processing of Personal Data pursuant to this DPA: The Client pursuant to the Cloud Service Agreement.|
|Personal Data||Any information relating to an identified or identifiable natural person processed by the Processor on behalf of the Controller.|
|Processor||The legal entity processing data on behalf of the Controller pursuant to this DPA: MyProduction AS.|
- This DPA shall reflect the Parties agreement with respect to their rights and obligations pursuant to the Applicable Data Protection Law, and concerns the Processor’s use of Personal Data on behalf of the Controller, including collection, recording, alignment, storage and disclosure or a combination of such uses. This DPA forms part of the Cloud Service Agreement, and by accepting the Cloud Service Agreement, the Controller has also accepted the terms and conditions of this DPA (as clearly set out in the Cloud Service Agreement).
- The DPA 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). The DPA are based on the official standard contractual clauses approved by the EDPB.
- The Processor shall process Personal Data on behalf of the Controller solely for the purpose of performing the tasks imposed on the Processor by the Controller pursuant to the Cloud Service Agreement, as part of the agreed delivery of the Cloud Services under the Cloud Service Agreement. The Parties further agree that any processing of Personal Data contemplated by this DPA shall be conducted in accordance with the requirements set forth in the Applicable Data Protection Law, this DPA, and the Cloud Service Agreement.
- The DPA shall take priority over any similar provisions contained in other agreements between the parties.
- Two appendices are attached to the DPA and form an integral part of the DPA.
- 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.
- Appendix B contains the Controller’s conditions for the Processor’s use of sub-processors and a list of sub-processors authorised by the Controller.
- For detailed and updated information concerning Processor’s technical and organizational security measures, please find the MyProduction Security Policy here: https://myproduction.no/privacy-statement/
- The DPA shall not exempt the Processor and controller from obligations to which the Processor or controller is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.
3. The rights and obligations of the Controller
- The 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 DPA.
- The Controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
- The Controller shall be responsible, among other, for ensuring that the processing of personal data, which the Processor is instructed to perform, has a legal basis.
4. The Processor acts according to instructions
- The Processor and any person acting on behalf of the Processor that has access to personal data, shall process the data only on documented instructions from the Controller. The Parties agree that this DPA and the Cloud Service Agreement constitutes such instructions from the Controller. Subsequent instructions can also be given by the 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 DPA.
- The Processor shall immediately inform the Controller if instructions given by the Controller, in the opinion of the Processor, contravene the GDPR or the applicable EU or Member State data protection provisions.
- The Processor shall only grant access to the personal data being processed on behalf of the Controller to persons under the 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.
- The Processor shall at the request of the Controller demonstrate that the concerned persons under the Processor’s authority are subject to the abovementioned confidentiality.
6. Security of processing
- 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 Controller and Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.The 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.
- According to Article 32 GDPR, the Processor shall also – independently from the 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 Controller shall provide the Processor with all information necessary to identify and evaluate such risks.
- Furthermore, the Processor shall assist the Controller in ensuring compliance with the Controller’s obligations pursuant to Articles 32 GDPR, by inter alia providing the Controller with information concerning the technical and organisational measures already implemented by the Processor pursuant to Article 32 GDPR along with all other information necessary for the Controller to comply with the Controller’s obligation under Article 32 GDPR.If subsequently – in the assessment of the Controller – mitigation of the identified risks require further measures to be implemented by the Processor, than those already implemented by the Processor pursuant to Article 32 GDPR, the Controller shall specify these additional measures to be implemented in a separate appendix.
7. Use of sub-processors
- The Processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).
- The Processor shall therefore not engage another processor (sub-processor) for the fulfilment of the DPA without the prior general written authorisation of the Controller.
- The Processor has the Controller’s general authorisation for the engagement of sub-processors. The Processor shall inform in writing the Controller of any intended changes concerning the addition or replacement of sub-processors at least 30 days in advance, thereby giving the 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 Controller can be found in Appendix B.
- Where the Processor engages a sub-processor for carrying out specific processing activities on behalf of the Controller, the same data protection obligations as set out in the DPA 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 DPA and the GDPR.
The Processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the Processor is subject pursuant to the DPA and the GDPR.
- A copy of such a sub-processor agreement and subsequent amendments shall – at the Controller’s request – be submitted to the Controller, thereby giving the Controller the opportunity to ensure that the same data protection obligations as set out in the DPA 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 Controller.
- The Processor shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of the Processor – the 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 Processor, e.g. enabling the Controller to instruct the sub-processor to delete or return the personal data.
- If the sub-processor does not fulfil his data protection obligations, the Processor shall remain fully liable to the 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 Controller and the Processor, including the sub-processor.
8. Transfer of data to third countries or international organisations
- Any transfer of personal data to third countries or international organisations by the Processor shall only occur on the basis of documented instructions from the Controller and shall always take place in compliance with Chapter V GDPR.
- In case transfers to third countries or international organisations, which the Processor has not been instructed to perform by the Controller, is required under EU or Member State law to which the Processor is subject, the Processor shall inform the Controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
- Without documented instructions from the Controller, the Processor therefore cannot within the framework of the DPA:a. transfer personal data to a Controller or a data processor in a third country or in an international organizationb. transfer the processing of personal data to a sub-processor in a third countryc. have the personal data processed in by the Processor in a third country
- The 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 a separate appendix.
- The DPA shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and the DPA cannot be relied upon by the parties as a transfer tool under Chapter V GDPR.
9. Assistance to the Controller
- Taking into account the nature of the processing, the Processor shall assist the Controller by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the Controller’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR.This entails that the Processor shall, insofar as this is possible, assist the Controller in the 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
- In addition to the Processor’s obligation to assist the Controller pursuant to Clause 6.3., the Processor shall furthermore, taking into account the nature of the processing and the information available to the Processor, assist the Controller in ensuring compliance with:a. The 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 Norwegian data protection authority (Nw “Datatilsynet“) unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;b. the 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 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 Controller’s obligation to consult the Norwegian data protection authority (Nw “Datatilsynet“) prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the Controller to mitigate the risk.
10. Notification of personal data breach
- In case of any personal data breach, the Processor shall, without undue delay after having become aware of it, notify the Controller of the personal data breach.
- The Processor’s notification to the Controller shall, if possible, take place within 72 hours after the Processor has become aware of the personal data breach to enable the Controller to comply with the Controller’s obligation to notify the personal data breach to the competent supervisory authority, cf. Article 33 GDPR.
- In accordance with Clause 9(2)(a), the Processor shall assist the Controller in notifying the personal data breach to the competent supervisory authority, meaning that the Processor is required to assist in obtaining the information listed below which, pursuant to Article 33(3)GDPR, shall be stated in the 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.
11. Erasure and return of data
- On termination of the provision of personal data processing services, the Processor shall be under obligation to return all the personal data to the Controller and delete existing copies unless Union or Member State law requires storage of the personal data.
12. Audit and inspection
- The Processor shall make available to the Controller upon request all information necessary to demonstrate compliance with the obligations laid down in Article 28 and the DPA and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller.
- Should the Controller request an audit of the Processor in addition to the compliance information provided, the controller shall bear both parties costs incurred as a result of the audit. The Processor will bill for the accrued time, based on the hourly rate stated in the contract with the Controller. Notwithstanding the foregoing, if the audit or inspection reveals that the Processor has not complied with its obligations under these Clauses or the GDPR, the Processor shall bear all reasonable costs.
- The Processor shall be required to provide the supervisory authorities, which pursuant to applicable legislation have access to the Controller’s and Processor’s facilities, or representatives acting on behalf of such supervisory authorities, with access to the Processor’s physical facilities on presentation of appropriate identification.
- Nevertheless, if the Processor cannot provide certain audit rights to Controller, such as physical inspections, for parts of the service which is delivered by the a pre-approved subcontractor, solely due to stricter audit rights from the pre-approved subcontractor, the Processor shall not be held liable and the Controller must approach the pre-approved subcontractor directly if Controller is of the opinion that such strict audit rights is not in accordance with applicable law.
13. Right to compensation and liability
- Subject to the limitations of liability of the Cloud Service Agreement or applicable order confirmation of the Processor, the Processor is liable for claims, costs, loss, fines, expenses or damages incurred on the Controller as a result of the Processor’s breach of this DPA, including non-compliance with the GDPR.
14. Commencement and termination
- This DPA remains valid for as long as the Cloud Service Agreement is in force and terminates automatically upon the termination or expiration of the Cloud Service Agreement. The Processor may not process Personal Data on behalf of the Controller following the termination or expiration of this DPA.
- If the provision of personal data processing services is terminated, and the personal data is deleted or returned to the Controller pursuant to Clause 11.1, the DPA may be terminated by written notice by either party.
- Notices pursuant to this DPA shall be sent in writing to the Parties’ given contact persons as defined in the Cloud Service Agreement or any order documentation therein.
- The parties shall be under obligation to ensure that the Parties have up to date notification and contact information.
16. Governing Law and Legal Venue
- Unless otherwise agreed through the Cloud Service Agreement, this DPA is governed by Norwegian law, and any disputes arising from or relating to this DPA shall be subject to the exclusive jurisdiction of Norwegian courts and with Oslo as legal venue.
Appendix A Information about the processing
Information about personal data processed by the Processor:
|Personal contact information (Address, e-mail, phone number, etc.)||X|
|Reference number / Customer number / Employee number||☐|
|Information of next of kind||☐|
|Information about children||☐|
|National identity number / Social security number||☐|
|Customer engagement details||☐|
|Details of insurance||☐|
|Medical or health information||☐|
|Information about sexual relationships||☐|
|Information relating to litigation and criminal offenses||☐|
|Information on racial or ethnic background||☐|
|Information on political, philosophical or religious beliefs||☐|
|Information on union membership||☐|
|Comments / categories beyond the above|
Specify all purposes for which Personal Data will be processed by the Supplier as the Customer’s Processor
|The purpose of the processing is to inform and send marked information|
|Categories of data subjects
Specify all categories of Data Subjects who’s Personal Data will be Processed by the Supplier as the
|Retention time||until notice of termination|
Appendix B Authorised sub-processors
B.1. Approved sub-processors
On commencement of the DPA, the Controller authorises the engagement of the following sub-processors:
|NAME||CVR||ADDRESS||DESCRIPTION OF PROCESSING|
|Braathe Gruppen AS||981933311||Nærumveien 24, 1580 Rygge||Provider|
The Controller shall on the commencement of the DPA authorise the use of the abovementioned sub-processors for the processing described for that party.