1. Definitions
- "Applicable Data Protection Law" means the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the Norwegian Personal Data Act of 15 June 2018 no. 15 and any legislation implementing GDPR, as well as any other legislation regarding processing of personal data if specified in Schedule A.
- Words, abbreviations and expressions not defined herein shall have the meaning ascribed to them in the Agreement and Applicable Data Protection Law, unless otherwise appears from the context or is expressly stated below.
2. Preamble
- This DPA sets out the rights and obligations of the data controller and the data processor, when processing personal data on behalf of the data controller. This DPA has been designed to ensure the parties’ compliance with Applicable Data Protection Law.
- In the context of the delivery of the Service as agreed in the Agreement, Morescope will process certain personal data on behalf of the Customer in accordance with this DPA. For the purpose of this DPA, Customer is the data controller and Morescope is the data processor processing personal data on Customer's behalf.
- Morescope may also act as a data processor on behalf of the Affiliates if the Customer grants Affiliates access to the Service pursuant to the Agreement. The Affiliate will in such event be considered a data controller for the purpose of this DPA and the Customer will either (i) enter into this DPA in the name and on behalf of its Affiliates or (ii) ensure that the DPA is properly executed by its Affiliates. Should the Customer fail to ensure the execution of this DPA or to bind its Affiliates accordingly, it will be considered a breach of the Agreement.
- The DPA shall take priority over any similar provisions contained in other agreements between the parties
- Two schedules are attached to the DPA and form an integral part of the DPA.
- Schedule A contains details about the processing of personal data, including the purpose of the processing, type of personal data, categories of data subject and duration of the processing.
- Schedule B contains a list of sub-processors authorised by the data controller.
- The DPA along with appendices shall be retained in writing, including electronically, by both parties.
- The DPA shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (GDPR) or other legislation.
3. The rights and obligations of the data controller
- 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 DPA.
- The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
- 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.
4. The data processor acts according to instructions
- 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 Schedule A and B. 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 DPA.
- 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.
5. Confidentiality
- 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 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.
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 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. 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 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.
- 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 requires further measures to be implementedby the data processor, than those already implemented by the data processorpursuant to Article 32 GDPR, the data controller shall specify these additionalmeasures to be implemented in a separate schedule.
7. Use of sub-processors
- The data processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).
- The data processor shall therefore not engage another processor (sub-processor) for the fulfilment of the DPA without the prior general written authorisation of the data controller.
- 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).
- If the data controller objects to the engagement of a particular sub-processor, the parties shall negotiate in good faith with a view to reaching an agreement on a mutually acceptable solution. If the parties are unable to reach such agreement, either party may terminate the Main Agreement and this DPA with six (6) months' notice.
- 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 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 data processor shall therefore be responsible for requiringthat the sub-processor at least complies with the obligations to which the dataprocessor is subject pursuant to the DPA and the GDPR.
- 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 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 data controller.
- 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.
8. Transfer of data to third countries or international organisations
- 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.
- 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.
- Without documented instructions from the data controller, the data processor therefore cannot within the framework of the DPA:
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
- PA 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 data controller
- 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 inChapter 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 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 data processor’s obligation to assist the data controller pursuant to Clause 8.1, 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:
a) 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 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 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;
c) 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);
d) the data 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 data controller to mitigate the risk.
10. Notification of personal data breach
- 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
- The data processor’s notification to the data controller shall, if possible, take place 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.
- 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 listed below which, pursuant to Article 33(3) GDPR, shall be stated in the data 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 data processor shall, subject to the data controller's instructions, be under the obligation to return and/or delete all the personal data to the data controller, including deleting any existing copies, unless Union or Member State law requires storage of the personal data.
12. Audit and inspection
- 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 DPA and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.
- Should the data controller request an audit of the data processor in addition to the compliance information provided, the controller shall bear both parties costs incurred as a result of the audit. The data processor will bill for the accrued time, based on the hourly rate stated in the Main Agreement. Notwithstanding the foregoing, if the audit or inspection reveals that the data processor has not complied with its obligations under this DPA or the GDPR, the data processor shall bear all reasonable costs.
- 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.
13. Right to compensation and liability
- Subject to the limitations of liability of the Agreement or applicable order confirmation of the data processor, each party shall be liable for claims, costs, loss, fines, expenses or damages incurred by the other party as a result of the party's breach of this agreement, including non-compliance with the GDPR. Notwithstanding the foregoing, each party's liability for damage incurred as a result of a claim pursuant to Article 82 of the GDPR, is solely set out in Article 82 of the GDPR and applicable data protection law.
14. Commencement and termination
- The DPA shall become effective on the date of both parties’ signature.
- Both parties shall be entitled to require the DPA renegotiated if changes to the law should give rise to such renegotiation.
- The DPA 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 DPA cannot be terminated unless other DPAs governing the provision of personal data processing services have been agreed between the parties.
- 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 10.1, the DPA may be terminated by written notice by either party.
15. Data controller and data processor contacts/contact points
- The parties may contact each other using the contact information stated in the Subscription Form.
- The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.
- Customer is responsible for coordinating all communication with Morescope on behalf of its Affiliates regarding this DPA. Customer represents that it is authorised to issue instructions as well as make and receive any communications or notifications in relation to this DPA on behalf of its Affiliates.
SCHEDULE A: INFORMATION ABOUT THE PROCESSING
Information about personal data processed by the data processor:
Categories of personal data to be processed
i. Personal name, personal contact information (address, e-mail, phone number, etc.), reference number / customer number / employee number, customer engagement details, financial information.
ii. Other categories of personal data that the end user may enter into the Service voluntarily, but which is not necessary for providing the service, such as national identity number/social security number, salary information and other personal financial information.
Purposes
Specify all purposes for which personal data will be processed by the Supplier as the Customer's data processor Providing the Service;
- The parties may contact each other using the contact information stated in the Subscription Form.
- Improving, or otherwise modifying, the Service;
- Providing the Customer and its users with requested support, training and assistance;
- Performing the data processor's obligations towards the Customer, its users and the data subjects pursuant to the DPA and the Main Agreement;
- Exercising and enforcing the data processor’s rights according to the Agreement.
Categories of data subjects
The data subjects may include Customer’s employees and contractors, customers, partners, suppliers, end users, and any person who uploads data via the Services, including individuals collaborating and communicating with end users.
Retention time
The personal data will be processed continuously and for as long as is necessary for the purposes outlined above. Upon termination of the Main Agreement, all data will be deleted at the latest within six months.
SCHEDULE B: AUTHORISED SUB-PROCESSORS
B.1. Approved sub-processors
On commencement of the DPA, thedata controller authorises the engagement of the sub-processors listed at www.morescope.com/sub-processors
