This Data Processing Agreement is version no. 1, last updated 28.11.2022
1. Subject Matter and Duration of the Contract
(1) Subject matter
The subject matter of the Agreement regarding the processing of data is the execution of the services or tasks by the Supplier as follows:
The Contract is authorized for an unlimited period and can be cancelled by either Party at the end of each term provided notice is received at least 90 days before the end of the term. This does not prejudice the right to termination of other contracts between the parties with or without notice.
2. Specification of the Contract Details
(1) Nature and Purpose of the intended Processing of Data
Detailed description of the subject matter with regard to the nature and purpose of the services provided by the Supplier is as follows:
The undertaking of the contractually agreed processing of data shall be carried out exclusively within the territory of the member states of the European Union (EU) or within the territory of the member states of the European Economic Area (EEA). Each and every transfer of data to a state which is not a member state of either the EU or the EEA requires the prior agreement (i.e. direct and explicit consent) of the Publisher (as well as explicit and direct consent of the data subject) and shall only occur if the specific conditions of Article 44 et seq. of the GDPR have been fulfilled. The adequate level of protection (the appropriate safeguards) in such non-member state of the EU or EEA because it:
Notwithstanding anything to the contrary sated in his Section 2, Passendo shall always act as a data processor (or sub-processor if applicable) on behalf of the Publisher (i.e. data controller or main data processor), and the Publisher acknowledges and agrees with this to the fullest possible extent, unless (i) otherwise agreed separately with the Publisher and/or (ii) derives from the applicable law, including the GDPR, and/or (iii) defined internally by Passendo’s various data protection and privacy policies as amended from time to time.
(2) Type of data
The type of personal data used is precisely defined here below. The subject matter of the processing of personal data comprises the following data types/categories (list/description of the data categories):
(3) Categories of data subjects
The categories of data subjects comprise:
3. Technical and Organisational Measures
(1) If requested by the Publisher before the commencement of processing personal data under this Contract, Passendo shall document the execution of the necessary technical and organisational measures, set out in advance of the awarding of the Contract, specifically with regard to the detailed execution of the Contract, and shall present these documented measures to the Publisher for inspection. Upon acceptance by the Publisher, the documented measures become the foundation of the Contract. If the inspection/audit by the Publisher shows the need for amendments, such amendments shall be implemented by mutual agreement between the Publisher and the Supplier without any unreasonable delay.
(2) The Supplier shall establish the security in accordance with Article 28 Paragraph 3 Point c, and Article 32 of the GDPR in particular in conjunction with Article 5 Paragraph 1, and Paragraph 2 of the GDPR. The measures to be taken are measures of data security and measures that guarantee a protection level appropriate to the risk concerning confidentiality, integrity, availability and resilience of the systems. The state of the art, implementation costs, the nature, scope and purposes of processing as well as the probability of occurrence and the severity of the risk to the rights and freedoms of natural persons within the meaning of Article 32 Paragraph 1 of the GDPR must be taken into account.
(3) The technical and organisational measures are subject to technical progress and further development. In this respect, it is permissible for the Supplier to implement alternative adequate measures. In so doing, the security level of the defined measures must not be reduced. Substantial changes must be documented.
(4) Passendo makes campaign targeting and reporting based on matching one-way encrypted email addresses in segmented form from the Publisher with data segments collected on other platforms.
4. Rectification, Restriction and Erasure of Data
(1) The Supplier may not on its own authority rectify, erase or restrict the processing of data that is being processed on behalf of the Publisher, but only on documented instructions from the Publisher or if the applicable law demands so.
If a data subject contacts the Supplier directly concerning a rectification, erasure, or restriction of processing, the Supplier will immediately forward the data subject’s request to the Publisher.
(2) Insofar as it is included in the scope of services, the erasure policy, ‘right to be forgotten’, rectification, data portability and access shall be ensured by the Supplier in accordance with documented instructions from the Publisher without undue delay.
5. Quality Assurance and Other Duties of the Supplier
(1) In addition to complying with the rules set out in this Contract, the Supplier shall comply with the statutory requirements referred to in Articles 28 to 33 of the GDPR; accordingly, the Supplier will do its best in order to ensure, in particular, compliance with the following requirements if required by the applicable law and in particular the GDPR:
(1) Subcontracting for the purpose of this Contract is to be understood as meaning services which relate directly to the provision of the principal service. This does not include ancillary services, such as telecommunication services, postal/transport services, maintenance and user support services or the disposal of data carriers, as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing equipment. The Supplier shall, however, be obliged to make appropriate and legally binding contractual arrangements and take appropriate inspection measures to ensure the data protection and data security of the Publisher’s data, even in the case of outsourced ancillary services.
(2) The Supplier may commission subcontractors (additional contract processors) only after prior explicit written or documented consent from the Publisher.
(3) The transfer of personal data from the Publisher to the subcontractor and the subcontractor commencement of the data processing shall only be undertaken after compliance with all requirements has been achieved.
(4) If the subcontractor provides the agreed service outside the EU/EEA, the Supplier shall ensure compliance with the EU data protection regulations (i.e. the GDPR) by appropriate measures.
(5) Further outsourcing by the subcontractor:
All contractual provisions in the contract chain shall be communicated to and agreed with each and every additional subcontractor.
7. Supervisory Powers of the Publisher
(1) The Publisher has the right, after consultation with the Supplier, to carry out inspections or to have them carried out by an auditor to be designated in each individual case. It has the right to convince itself of the compliance with this Contract by the Supplier in his business operations by means of random checks, which are ordinarily to be announced in good time.
(2) The Supplier shall ensure that the Publisher is able to verify compliance with the obligations of the Supplier in accordance with Article 28 of the GDPR. The Supplier undertakes to give the Publisher the necessary information on request and, in particular, to demonstrate the execution of the technical and organizational measures.
(3) Evidence of such measures, which concern not only the specific Contract, may be provided by:
(4) The Supplier may claim remuneration for enabling Publisher inspections.
8. Communication in the Case of Infringements by the Supplier
(1) The Supplier shall assist the Publisher in complying with the obligations concerning the security of personal data, reporting requirements for data breaches, data protection impact assessments and prior consultations, referred to in Articles 32 to 36 of the GDPR. These include, but are not limited to:
(2) The Supplier may claim compensation for support services which are not included in the description of the services and which are not attributable to failures on the part of the Supplier.
9. Authority of the Publisher to Issue Instructions
(1) The Publisher shall immediately confirm oral instructions (at the minimum in text form).
(2) The Supplier shall inform the Publisher immediately if he considers that an instruction violates data protection regulations (e.g. the GDPR). The Supplier shall then be entitled to suspend the execution of the relevant instructions until the Publisher confirms or changes them.
10. Deletion and return of personal data
(1) Copies or duplicates of the data shall never be created without the knowledge of the Publisher, with the exception of back-up copies as far as they are necessary to ensure orderly data processing, as well as data required to meet regulatory requirements to retain data.
(2) After conclusion of the contracted work, or earlier upon request by the Publisher, at the latest upon termination of the Service Agreement, the Supplier shall hand over to the Publisher or – subject to prior consent – destroy all documents, processing and utilization results, and data sets related to the contract that have come into its possession, in a data-protection compliant manner. The same applies to any and all connected test, waste, redundant and discarded material. The log of the destruction or deletion shall be provided on request.
(3) Documentation which is used to demonstrate orderly data processing in accordance with the Contract shall be stored beyond the contract duration by the Supplier in accordance with the respective retention periods. It may hand such documentation over to the Publisher at the end of the contract duration to relieve the Supplier of this contractual obligation.
(4) If the Service Agreement and/or the Contract are terminated, Passendo is obligated to delete the processed personal data immediately after the expiry of the period of notice.
11. General and Other Additional Provisions
Obligations of the Publisher (additional provisions).
The Publisher shall be responsible for ensuring that the processing of personal data in accordance with the Contract complies with the requirements of legislation that is applicable at any given time, including that the Publisher, if required by legislation, has obtained personal data through valid statements of consent. The Publisher is obligated to take sufficient organizational and security measures to prevent personal data covered by the Contract from being unintentionally or illegally destroyed, lost or deteriorated and to prevent that it becomes known by unauthorized persons, misused or otherwise processed in violation of the law. The Publisher shall ensure that Passendo, as part of the Contract, does not process personal data other than general personal data, as mentioned in section 3.1 of the Contract, unless otherwise agreed by the Parties.
Termination (additional provisions). The Contract shall remain in force as long as the Service Agreement is applicable. The Contract may only be applicable as long as the Service Agreement is applicable.
If the Service Agreement between the Publisher and Passendo is terminated, cancelled or is otherwise annulled, the Contract shall also be terminated.
The Contract is authorized for an unlimited period and can be cancelled by either Party at the end of each term provided notice is received at least90 days before the end of the term. This does not prejudice the right to termination of other contracts between the parties with or without notice.
The Contract may be terminated by both Parties in accordance with the same conditions as in the Service Agreement.
A breach of security at Passendo, which results in personal data covered by the Contract being compromised or leaked to a serious degree, and after a demand made by the Publisher, sufficient security measures at Passendo have not been implemented to, in part, limit the damage resulting from the breach of security and, in part, to prevent similar events, gives the Publisher the right to terminate the Service Agreement and the Contract with immediate effect.
If the processing of personal data covered by the Contract does not comply with legislation that is applicable at any given time, and this is due to conditions at the one Party, and the processing is not made legal within a reasonable time after a demand made by the other Party, the other Party may terminate the Service Agreement and the Contract with immediate effect.
Conflicts and disputes. In case of a conflict between the Contract and other agreements entered into between the Parties, including the Service Agreement, the provisions in the Contract take precedence.
Applicable law. The Contract (including every question regarding the applicability of the Contract) shall be governed by Danish law. The court of law is the city court of Copenhagen, Denmark.
Signatures. Two identical copies of the Contract shall be signed by the Parties, and each Party shall retain one copy. Each Party shall retain the Contract for five years after the Contract’s expiry.
to the Data Processing Agreement
TECHNICAL AND ORGANISATIONAL MEASURES
12. Confidentiality (Article 32 Paragraph 1 Point b of the GDPR)
No unauthorized access to data processing facilities, e.g.: magnetic or chip cards, keys, electronic door openers, facility security services and/or entrance security staff, alarm systems, video/CCTV Systems.
No unauthorized use of the data processing and data storage systems, e.g.: (secure) passwords, automatic blocking/locking mechanisms, two-factor authentication, encryption of data carriers/storage media.
No unauthorized reading, copying, changes or deletions of data within the system, e.g. rights authorization concept, need-based rights of access, logging of system access events.
The isolated processing of data, which is collected for differing purposes, e.g. multiple Publisher support, sandboxing.
The processing of personal data in such a method/way, that the data cannot be associated with a specific data subject without the assistance of additional Information, provided that this additional information is stored separately, and is subject to appropriate technical and organizational measures.
13. Integrity (Article 32 Paragraph 1 Point b of the GDPR)
No unauthorized reading, copying, changes or deletions of data with electronic transfer or transport, e.g.: encryption, virtual private networks (VPN), electronic signature;
Verification, whether and by whom personal data is entered into a data processing system, is changed or deleted, e.g.: logging, document management.
14. Availability and Resilience (Article 32 Paragraph 1 Point b of the GDPR)
Prevention of accidental or wilful destruction or loss, e.g.: backup strategy (online/offline; on-site/off-site), uninterruptible power supply (UPS), virus protection, firewall, reporting procedures and contingency planning.
15. Procedures for regular testing, assessment and evaluation (Article 32 Paragraph 1 Point d GDPR; Article 25 Paragraph 1 of the GDPR)
No third party data processing as per Article 28 of the GDPR without corresponding instructions from the Publisher, e.g.: clear and unambiguous contractual arrangements, formalized order management, strict controls on the selection of the service provider, duty of pre-evaluation, supervisory follow-up checks.
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