Data Protection Agreement

Data Protection Agreement Standard Contractual Clauses

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

 

Kaunt A/S 

Fiskerivej 12 1 

8000 Aarhus C 

Denmark 

CVR nr: 40 86 58 88 

 

(the data processor) 

 

and 

 

The customer (the data controller) 

 

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. 

Contents 

  1. Introduction
  2. The rights and obligations of the data controller 
  3. The data processor acts according to instructions 
  4. Confidentiality 
  5. Security of processing
  6. Use of sub-processors 
  7. Transfer of data to third countries or international organizations 
  8. Assistance to the data controller 
  9. Notification of personal data breach 
  10. Erasure and return of data 
  11. Audit and inspection 
  12. The parties’ agreement on other terms  
  13. Commencement and termination 

Appendix A Information about the processing  

Appendix B Authorized sub-processors 

Appendix C Instruction pertaining to the use of personal data  

Appendix D The parties’ terms of agreement on other subjects 

1. Introduction

  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 Kaunt automated supplier invoice processing, the data processor will process personal data on behalf of the data controller in accordance with the Clauses.

  4. The Clauses shall take precedence over any similar provisions contained in other agreements between the parties.

  5. Four appendices are attached to the Clauses and are part of the Clauses.

  6. Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.

  7. Appendix B contains the data controller’s conditions for the data processor’s use of sub-processors and a list of sub-processors, authorized by the data controller.

  8. Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum-security measures to be implemented by the data processor, and how audits of the data processor and any sub-processors are to be performed.

  9. Appendix D contains provisions for other activities which are not covered by the Clauses. 

  10. The Clauses along with appendices shall be retained in writing, including electronically, by both parties.

  11. The Clauses shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation. 

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 State1 data protection provisions and the Clauses.

  2. The data controller has the right and obligation to make decisions about the purposes and methods 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 laws 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. 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, violate or infringe upon the GDPR or the applicable EU or Member State data protection provisions. 

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 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. Personal data shall consequently no longer be accessible 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. 

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 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. Pseudonymization 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 organizational 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 among other things 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 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. 

6.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 authorization of the data controller.

  3. The data processor has the data controller’s general authorization 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). 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 minimum 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. 

7. 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:

    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 includes, 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. 

8. 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 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 has 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 article 33 (GDPR). 

9. Notification of personal data breach

  1. In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the data controller of the personal data breach.

  2. The data processor’s notification to the data controller shall, if possible, take place within 72 hours after the data processor has become aware of the personal data breach to enable the data controller to comply with the data controller’s obligation to notify the personal data breach to the competent supervisory authority, cf. Article 33 GDPR.

  3. In accordance with Clause 9(2)(a), the data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, meaning that the data processor is required to assist in obtaining the information pursuant to Article 33(3)GDPR, as stated by the data controller’s notification to the competent supervisory authority.

  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. 

10. 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 laws requires storage of the personal data. 

11. 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. 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.  

12. The parties’ 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. 

12. 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 to 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.

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: 

Providing Kaunt for automating supplier invoice processing. 

Providing support for the daily operations of Kaunt.  

 

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): 

 

Processing of supplier invoices for the purpose of providing Kaunt for automating supplier invoice processing.  

 

This involves receiving and processing supplier invoices for the purpose of creating a booking in the data controller’s ERP system.  

 

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

 

Any personal data that might be registered in a supplier invoice, typically this is, but not limited to: Name, e-mail address, telephone number, address, payment details. It might rarely include the CPR number or special categories of registered personal data.   

 

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

 

Professional collaborative partners, eg. contact persons, employees and other contact persons.  

 

A.5. The data processor’s processing of personal data on behalf of the data controller may be performed when the Clauses commence. 

Appendix B: Authorized sub-processors

B.1. Approved sub-processors 

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

Screenshot 2021-11-02 at 13.50.12

The data controller shall on the commencement of the Clauses authorize the use of the aforementioned sub-processors for the processing described for that party. The data processor shall not be entitled – without the data controller’s explicit written authorization – to engage a sub-processor for a ‘different’ processing other than the one which has been agreed upon, or have another sub-processor perform the described 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 following: 

 

Processing supplier invoices and creating a booking in the ERP system.  

Providing support for the use of Kaunt. 

 

C.2. Security of processing 

The data processor must ensure an adequate level of security of processing 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 the processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk as pursuant to article 32 (GDPR).   

 

C.5. Processing location 

 

Processing of the personal data under the Clauses will take place at the following locations.  

 

Kaunt A/S 

Fiskerivej 12, 1. sal 

8000 Aarhus C 

Denmark 

 

Kaunt A/S 

Copenhagen FinTech Lab, Appelbys plads 7   

1411 KøbenhavnK  

Denmark 

 

Enversion A/S 

Fiskerivej 12, 1. sal 

8000 Aarhus C 

Denmark 

 

Hosting at: 

 

Ecit Solutions A/S 

Rudolfgårdsvej 1B  

8260 Viby J 

CVR-nr.: 28843151 

 

and 

 

at Microsoft Azure. Data is stored in region of West Europa, The Netherlands

 

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

Transfers of personal data might occur in relation to remote access to hosted data in Microsoft Azure. The legal basis of this transfer is Standard Contractual Clauses. Supplementary measures are included in appendix D.  

Appendix D: The parties’ terms of agreement on other subjects

the Data Processor warrants that: 

  1. All data processed under the agreement is encrypted in transit and at rest, and that the encryption key is stored in a secure environment. The Data Processor warrants that it will use no less than industry standard secure encryption protocols for the encryption used. Should the encryption algorithm break during the agreement, the Data Processor is obligated to change to another encryption algorithm in order to guarantee constant, efficient, and secure encryption of the Data Controller’s data.

     

  2. It has not created back doors or similar programming which can be used to access the system or the Data Controller’s data.
  3. It has not created or changed its business processes in a manner that facilitates access to the Data Controller’s data or the system.
  4. To the best of the Data Processor’s knowledge there is no legislation requiring the Data Processor to create or maintain back doors or in any other way facilitate access to the Data Controller’s data and/or systems, or which can require the Data Processor to hand over the encryption key.

     

  5. Where Personal Data is processed in the United States (only due to remote support access from Microsoft) or any other jurisdiction which does not offer an adequate level of protection to data subjects as equivalent to the protection in EU, in the event that a subpoena and/or disclosure request is received from a national organization (for example relating to national security purposes) which covers personal data relevant to, and/or which would involve disclosing personal data identifying, a data subject in the European Union: the Data Processor shall: 
    a.
    immediately notify the Data Controller (to the extent permissible by law); 
    b.
     examine the legality of the request and use best practices to challenge such request to the extent possible including limiting the response to the request to data subjects in the relevant jurisdiction; 
    c. whilst such challenge is being conducted, suspend any processing impacted by the request and/or withdraw the relevant exported personal data if requested by the Data Controller or, where appropriate, implement additional security measures in collaboration with the Data Controller (for example enhanced encryption and/or pseudonymisation measures); and where such challenge is not successful, do whatever it can to ensure that its response to such request is reasonable and proportionate. In particular, the Data Processor ensures that in responding to any such request, it shall not disclose personal data relating to data subjects which are not the subject of the request (i.e., shall ensure that there is no incidental disclosure of data relating to other individuals), and that
    d. The Data Processor will, to the widest extent possible, assist Data Controller in notifying the affected data subjects of the disclosure request from a national organization.  

 

In case of Data Processor’s breach of its obligations under this Appendix D, the Data Controller is entitled to terminate the agreement with one day’s written notice. 

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