Personal Data Processor Agreement
Online Partner AB (hereinafter referred to as “Online Partner” or the “Data Processor”), and The Customer (hereinafter referred to as the “Customer” or the “Data Controller”) (jointly referred to as the “Parties”).
The parties have entered into this Data Processing Agreement (the “Agreement”).
1.1. The Parties have previously, or in conjunction with this Agreement, entered into an agreement regarding services provided by Online Partner from time to time (hereinafter referred to as the “Service Agreement”) to which Online Partner’s General Terms and Conditions [regarding Service and Software] apply.
1.2. Pursuant to the undertakings which follow from the Service Agreement, the Data Processor may process Personal Data as well as other information on behalf of the Customer.
1.3. As a consequence thereof, the Parties are entering into this Agreement to govern the conditions for Online Partner’s processing of Personal Data when carrying out the services that are regulated in the Service Agreement (hereinafter “the Services”). This Agreement shall apply to all agreements executed between the Parties in which the Online Partner is the Data Processor on behalf of the Customer, and this Agreement shall remain in force for as long as Online Partner processes Personal Data on the Customer’s behalf.
2.1. For the purposes of this Agreement, terms that are defined in Article 4 in (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 (“Data Protection Regulation”) shall have the same meaning given to them therein.
2.2. Otherwise, the terms listed below shall have the following meaning:
”Data Protection Law” refers to the Data Protection Regulation as well as related European and national implementing regulations, as well as instructions and binding decisions from the EU data protection authorities.
2.3. ”Sub-processor” refers to such data processor (subcontractor) who has been hired by the Data Processor and who processes Personal Data on behalf of the Data Controller.
- Scope of the Agreement
3.1. The Data Processor provides the Services agreed with the Data Controller from time to time. The Data Processor’s main establishment and central administration is in Sweden.
3.2. The Service involves storage and transfer of user details provided by the user of the Services. Such data may directly or indirectly identify a natural person.
3.3. The Data Processor will solely process the Personal Data provided by the Data Controller in order to perform its obligations according to the Service Agreement.
3.4. The Personal Data that may be processed by the Data Processor on behalf of the Data Controller is irrevocably and automatically deleted upon the termination of the Service Agreement (provided storage of Personal Data is not required pursuant to national law or Union law).
3.5. The Parties hereby agree that the processing, the categories of Personal Data, the data subjects or the purposes of processing may at any time and by mutual agreement be clarified with respect to their specification and/or be enlarged with respect to their volume or scope. Any such changes shall be made in writing to be valid in due course after receipt of knowledge of such changes. Unless otherwise agreed by the Parties, the terms and conditions as set forth in this Agreement shall apply accordingly.
- Obligations of the Data Processor
4.1. The Data Controller shall have the full power of disposition regarding the Personal Data.
4.2. The Data Processor agrees that it will:
- a) provide the processing of Personal Data solely in accordance with the documented instructions of the Data Controller (“Instructions”), including with regard to transfers of Personal Data to a third country or an international organisation, for the purpose set forth in the Service Agreement, according to the rules and the provisions contained in this Agreement and in accordance with the applicable Data Protection Law,
- b) will implement the security measures specified herein,
- c) not acquire any rights in or to the Personal Data,
- d) not use the Personal Data for any purpose other than for the performance of its obligations under this Agreement and the Service Agreement, or for fault localization in the Data Processor’s system, and
- e) not process the Personal Data for its own purposes without the prior written approval of the Data Controller.
4.3. Where the Data Processor believes that any Instruction would result in a violation of the Data Protection Regulation or other applicable Data Protection Law, the Data Processor may suspend the execution of the Instruction until their lawfulness is confirmed by an authorized person of the Data Controller or is changed in writing.
4.4. The Data Processor will assist the Data Controller to the extent possible for the fulfilment of the Data Controller’s obligations to respond to requests for exercising the data subject’s rights as stated in Chapter III in the Data Protection Regulation.
4.5. The Data Processor will assist the Data Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the Data Processor.
- Notification Obligations of the Data Processor
5.1. The Data Processor shall promptly notify the Data Controller of any unauthorized access to Personal Data and/or any accidental or wilful disclosure of Personal Data to unauthorized third parties it becomes aware of.
5.2. The Data Processor shall promptly notify the Data Controller of any material breach of applicable Data Protection Laws in connection with this Agreement it becomes aware of.
5.3. If the Data Processor considers that any Instruction from the Data Controller is in violation with the Data Protection Law, it shall immediately report this to the Data Controller.
- Obligations of the Data Controller
6.1. The Data Controller shall provide the Data Processor instructions for the processing of the Personal Data. The Instructions must be in written form (whether physical or electronic).
6.2. The Instructions shall, inter alia, state the subject of the processing, the duration of the processing, the nature and purpose of the processing, the type of Personal Data, and categories of data subjects.
6.3. The Data Controller has the sole obligation to inform data subjects of the processing of their Personal Data by the Data Processer, and to ensure that the data subject is aware of its rights according to the applicable legislation.
6.4. The Data Controller is obligated to in any other manner perform its obligations in accordance with applicable Data Protection Law. Nothing in this Agreement shall be construed as a transfer of the Data Controller’s obligations stipulated in applicable Data Protection Law, to the Data Processor.
- Transfer of Personal Data to a third country
7.1. For the purpose of providing the agreed Services, the Data Processor’s servers are located in Finland and in an additional approximately 5 countries worldwide (within EU and in a third countries).
7.2. The Data Controller is aware and accepts that in third countries, the servers are located under co-location agreement with collaborators. Such parties have no right of access to data on the servers, and limited right of physical access to the servers, when the data is transferred between the Data Processor’s servers, the data in encrypted. The servers are remotely or directly operated by the Data Processors sub-processor.
7.3. The Data Controller commits that the data subjects have been informed or will be informed before the processing by the Data Processor that his or her data could be transmitted to a country outside of EU/EES.
7.4. If transfer of Personal Data to a third country or an international organisation is required by Union Law or National Law, the Data Processor may carry out such processes. In such a case, the Data Processor shall inform the Data Controller of that legal requirement before processing, unless the Data Protection Law prohibits such information on important grounds of public interests.
- Audit Rights
8.1. The Data Processor shall make available to the Data Controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the Data Protection Regulation and at the Data Controller’s request allow the data processing facilities of Processor to be audited with regard to the processing activities covered by this Agreement. The Data Processor will cooperate and provide assistance for such audit as may reasonably be required by the Data Controller and the organization carrying out the audit. The Data Controller is aware that for security reasons, there are limitations and regulations concerning whom may enter the premises where the servers are located.
8.2. Parties shall mutually agree which organization will carry out the audit.
8.3. The Data Controller will pay all costs, fees and expenses of the organization carrying out the audit.
9.1. The Data Controller acknowledges and agrees that (a) the Data Processor’s affiliates may be retained as sub-processors; and (b) the Data Processor and the Data Processor’s affiliates respectively may engage third-party sub-processors in connection with the provision of the Services. The Data Processor has or shall enter into a written agreement with each sub-processor containing data protection obligations not less protective than those in this Agreement. In any such Personal Data processor agreement, the sub-processor shall provide sufficient warranties in respect of taking suitable technical and organisational measures so that the processing meets the requirements of the Data Protection Regulation.
9.2. The Data Processor shall make available to the Data Controller the current list of sub-processors for the Services provided by the Data Processor. Such sub-processor lists shall include contact information of those sub-processors and their country of location. The Data Processor shall provide notification of new sub-processor(s) before authorizing any new sub-processor(s) to process Personal Data in connection with the provision of the applicable services.
9.3. The Data Controller may object to the Data Processor’s use of a new sub-processor by notifying the Data Processor promptly in writing within ten (10) business days after receipt of the Data Processor’s notice. In the event the Data Controller objects to a new sub-processor, the Data Processor will use reasonable efforts to make available to the Data Controller a change in the Services or recommend a commercially reasonable change to the Data Controller’s configuration or use of the Services to avoid processing of Personal Data by the objected-to new sub-processor without unreasonably burdening the Data Controller. If the Data Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, the Data Controller may terminate the agreement with respect only to those services which cannot be provided by the Data Processor without the use of the objected-to new sub-processor by providing written notice to the Data Processor.
9.4. The Data Controller must have justified reason to make such objection. With ‘justified reasons’, means circumstances on the new sub-processor’s side that significantly affect, or most likely risk to affect, the protection of the data subject’s personal integrity, such as the new sub-processor does not meet the requirements of the Data Protection Law.
9.5. If the sub-processor does not fulfil the obligations regarding the processing of Personal Data set forth in this Agreement, the Data Processor shall remain fully liable to the Data Controller for the sub-processor’s failure to comply with the obligations.
- Security and confidentiality
10.1. The Data Processor has provided sufficient guarantees that it shall take suitable technical and organisational measures to ensure that the processing of Personal Data meets the requirements of the Data Protection Law and ensures protection of the rights of the data subject.
10.2. The Data Processor has implemented and will maintain measures to maintain the security of the service as set forth in Exhibit A.
10.3. The Parties agree that the security measures specified in Exhibit A to this Agreement are appropriate technical and organisational measures to ensure a level of security appropriate to the risk, such as the protection of Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access to Personal Data transmitted, stored or otherwise processed, taking into account the state of the art, the cost of implementation and the nature, scope, context and purposing as well as the risk for the rights and freedoms of natural persons.
10.4. The Data Processor undertakes to not hand out or disclose information about Personal Data that is covered by this agreement to a third party. The confidentiality obligation applies after this agreement has otherwise expired.
10.5. In the event that the Data Processor is legally obliged to disclose to third parties or to a relevant supervisory authority, Personal Data to satisfy legal requirements, comply with law or respond to lawful requests or binding decisions by relevant authority the Data Processor shall, unless prohibited by law, notify the Data Controller without undue delay in writing or email of the reason and the form of the disclosure after it becomes aware of the obligation to disclose. The Data Processor shall wait, unless prohibited by law, for further instructions from the Data Controller concerning the requested disclosure.
10.6. The Data Processor shall ensure that all persons who have been given the authority to process Personal Data have entered into a separate confidentiality agremeent or are informed that a special duty of confidentiality exists according to agreement or applicable law.
10.7. The Data Processor shall takes all measures required pursuant to Article 32 in the Data Protection Regulation.
11.1. The provisions of Online Partner’s General Terms and Conditions regarding term and termination, liability, jurisdiction and competent court apply accordingly to this Agreement.
11.2. Amendments and supplements to this Agreement must be in writing. Except as amended by this Agreement, this Agreement will remain in full force and effect. If there is a conflict between the Service Agreement and this Agreement, the terms of this Agreement will take precedence.
Exhibit A, Technical and Organisational Security Measures
Online Partner will implement not less than the controls listed below, or their equivalent, during the term of this Agreement:
Access control to premises
The Data Processor will implement suitable measures for the purpose of preventing unauthorized persons from gaining access to the data processing equipment by the following means:
- Access authorizations for employees and third parties
- Protection and restriction of entrances and exits (restricted keycards and/or passes)
- Security of relevant premises (alarms and/or security guards)
Access control to data and user control
The Data Processor commits that any and all personnel with access to the Personal Data has this authority on a need-to-know-basis, for the purpose pf providing the Services in the Service Agreement, by means of:
- All staff uses hardened authentication using two-factor authentication
- Requirements for user authorization and strict access control
- Confidentiality obligations
- Differentiated access policies (e. g. partial blocking)
- Controlling destruction and the removal of data media
- Logging of events and activities (monitoring of break-in attempts, or attempts of unauthorised access)
- Issuing and safeguarding the identification codes
- Use of encryption where deemed appropriate by Data Processor
- Automatic log-off of user IDs that have not been used for a substantial period of time
- Ensuring that Customers only have access to their own Data
Transfer of data
The Data Processor will secure the Personal Data transferred and/or otherwise processed in accordance with the Service Agreement and Instructions by means of:
- Policies controlling the production of backup copies
- Documentation of the transfer, retrieval, and transmission programs
- Authorization policy
- Encrypting external online transmission
- Deleting remaining data before changing data media
- The traffic between the user and the service is encrypted SSL certificates.
- Personal Data is not transferred to a third Party without the Data Controller’s prior written consent, unless legally obliged
The Data Processor will maintain its internal organization in a manner that meets the requirements of Data Protection Law, by means of:
- Binding internal policies for personnel and/or consultants regarding security and the process of Personal Data, and/or instructions
- Internal emergency plan for recovery and safeguard of Personal Data
- Authority to access data for personnel based on a strictly need-to-know-basis
- No customer data will be copied to external devices (USB sticks, CD i.e) without taking the necessary security measurements, such as encryption or password protection