Annex 1: Processing in accordance with Article 28 GDPR
Agreement between Customer – the Controller – hereinafter referred to as the Client – and BSI Business Systems Integration Deutschland GmbH – the Processor – hereinafter referred to as the Supplier
1. Subject matter and duration of the Order or Contract
(1) The Subject matter of the Order or Contract results from the Service Agreement if the software is procured in return for payment (Principle Contract), which is referred to here (hereinafter referred to as Service Agreement).
(2) The duration of this Order or Contract corresponds to the duration of the Service Agreement.
2. Specification of the Order or Contract Details
(1) Nature and Purpose of the intended Processing of Data. Nature and Purpose of Processing of personal data by the Supplier for the Client are precisely defined in the Service Agreement. The undertaking of the contractually agreed Processing of Data shall be carried out exclusively within a Member State of the European Union (EU) or within a Member State 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 of the Client and shall only occur if the specific Conditions of Article 44 et seq. GDPR have been fulfilled.
(2) Type of Data. The Subject Matter of the processing of personal data comprises the following data types/categories: Personal Master Data (Key Personal Data), Contact Data (e.g. phone, e‑mail address), Key Contract Data (Contractual/Legal Relationships, Contractual or Product Interest), Contract Billing and Payments Data (banking and account data), Session Connection Data (session number, session password – if assigned, start date and time, end date and time)
(3) Categories of Data Subjects. The Categories of Data Subjects comprise: Customers, Potential Customers, Subscribers, Employees (staff, applicants, trainees), Suppliers, Authorised Agents, Contact Persons (at customers, potential customers and suppliers)
3. Technical and Organisational Measures
(1) Before the commencement of processing, the Supplier shall document the execution of the necessary Technical and Organisational Measures, set out in advance of the awarding of the Order or Contract, specifically with regard to the detailed execution of the contract, and shall present these documented measures to the Client for inspection. Upon acceptance by the Client, the documented measures become the foundation of the contract. Insofar as the inspection/audit by the Client shows the need for amendments, such amendments shall be implemented by mutual agreement.
(2) The Supplier shall establish the security in accordance with Article 28 Paragraph 3 Point c, and Article 32 GDPR in particular in conjunction with Article 5 Paragraph 1, and Paragraph 2 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 GDPR must be taken into account. [Details in Appendix 1] (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. 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 Client, but only on documented instructions from the Client. Insofar as 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 Client.
(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 Client without undue delay.
5. Quality assurance and other duties of the Supplier
In addition to complying with the rules set out in this Order or Contract, the Supplier shall comply with the statutory requirements referred to in Articles 28 to 33 GDPR; accordingly, the Supplier ensures, in particular, compliance with the following requirements:
a) Appointed Data Protection Officer, who performs his/her duties in compliance with Articles 38 and 39 GDPR. The Supplier has appointed Mr. Sascha Weller, Lawyer, IDR Weller – Institut für Datenschutzrecht (Address: Ziegelbräustraße 7 in 85049 Ingolstadt, Germany, phone: +49–89-5880–1133‑8, e‑mail: email@example.com) as Data Protection Officer. The Client shall be informed immediately of any change of Data Protection Officer.
b) Confidentiality in accordance with Article 28 Paragraph 3 Sentence 2 Point b, Articles 29 and 32 Paragraph 4 GDPR. The Supplier entrusts only such employees with the data processing outlined in this contract who have been bound to confidentiality and have previously been familiarised with the data protection provisions relevant to their work. The Supplier and any person acting under its authority who has access to personal data, shall not process that data unless on instructions from the Client, which includes the powers granted in this contract, unless required to do so by law.
c) Implementation of and compliance with all Technical and Organisational Measures necessary for this Order or Contract in accordance with Article 28 Paragraph 3 Sentence 2 Point c, Article 32 GDPR [details in Appendix 1].
d) The Client and the Supplier shall cooperate, on request, with the supervisory authority in performance of its tasks.
e) The Client shall be informed immediately of any inspections and measures conducted by the supervisory authority, insofar as they relate to this Order or Contract. This also applies insofar as the Supplier is under investigation or is party to an investigation by a competent authority in connection with infringements to any Civil or Criminal Law, or Administrative Rule or Regulation regarding the processing of personal data in connection with the processing of this Order or Contract.
f) Insofar as the Client is subject to an inspection by the supervisory authority, an administrative or summary offence or criminal procedure, a liability claim by a Data Subject or by a third party or any other claim in connection with the Order or Contract data processing by the Supplier, the Supplier shall make every effort to support the Client.
g) The Supplier shall periodically monitor the internal processes and the Technical and Organizational Measures to ensure that processing within his area of responsibility is in accordance with the requirements of applicable data protection law and the protection of the rights of the data subject.
h) Verifiability of the Technical and Organisational Measures conducted by the Client as part of the Client’s supervisory powers referred to in item 7 of this contract.
(1) Subcontracting for the purpose of this Agreement 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 the data security of the Client’s data, even in the case of outsourced ancillary services.
(2) The Client agrees to the commissioning of the following subcontractors on the condition of a contractual agreement in accordance with Article 28 paragraphs 2–4 GDPR:
|Name of subcontractor
||City of registration/Country
||Managed Service/PaaS & IaaS Cloud Hosting
(3) The outsourcing to subcontractors or the change of the existing subcontractor are permissible, provided that a contractual agreement is based between the contractor and the subcontractor in accordance with Article 28 paragraphs 2–4 GDPR and the contractor notifies the client of such outsourcing to subcontractors in writing or in text form in advance and the client does not object to the planned outsourcing within 14 days in writing or in text form for important reasons. Failure by the client to lodge an objection within the aforementioned period shall be deemed to constitute consent to the assignment of the new subcontractor. The client is aware that the non-assignment of a new subcontractor can lead to a delay or non-performance of the services and increased remuneration. The contractor shall inform the client in writing or in text form of any impairment of the services or increase in remuneration resulting from an objection by the client to the commissioning of the new subcontractor. The client may then either conclude a written amendment to the contract in order to comply with the change or terminate the contract in accordance with the provisions of the contract. Such termination shall not constitute termination for good cause or for breach of contract.
(4) The transfer of personal data from the Client to the subcontractor and the subcontractors’ commencement of the data processing shall only be undertaken after compliance with all requirements has been achieved.
(5) If the subcontractor provides the agreed service outside the EU/EEA, the Supplier shall ensure compliance with EU Data Protection Regulations by appropriate measures. The same applies if service providers are to be used within the meaning of Paragraph 1 Sentence 2.
(6) Further outsourcing by the subcontractor requires the express consent of the Supplier (at the minimum in text form); all contractual provisions in the contract chain shall be communicated to and agreed with each and every additional subcontractor.
7. Supervisory powers of the Client
(1) The Client 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 agreement 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 Client is able to verify compliance with the obligations of the Supplier in accordance with Article 28 GDPR. The Supplier undertakes to give the Client 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 Order or Contract, may be provided by compliance with approved Codes of Conduct pursuant to Article 40 GDPR; or by certification according to an approved certification procedure in accordance with Article 42 GDPR; or by current auditor’s certificates, reports or excerpts from reports provided by independent bodies (e.g. auditor, Data Protection Officer, IT security department, data privacy auditor, quality auditor); or by a suitable certification by IT security or data protection auditing (e.g. according to BSI-Grundschutz (IT Baseline Protection certification developed by the German Federal Office for Security in Information Technology (BSI)) or ISO/IEC 27001).
(4) The Supplier may claim remuneration for enabling Client inspections.
8. Communication in the case of infringements by the Supplier
(1) The Supplier shall assist the Client 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:
a) Ensuring an appropriate level of protection through Technical and Organizational Measures that take into account the circumstances and purposes of the processing as well as the projected probability and severity of a possible infringement of the law as a result of security vulnerabilities and that enable an immediate detection of relevant infringement events.
b) The obligation to report a personal data breach immediately to the Client
c) The duty to assist the Client with regard to the Client’s obligation to provide information to the Data Subject concerned and to immediately provide the Client with all relevant information in this regard.
d) Supporting the Client with its data protection impact assessment
e) Supporting the Client with regard to prior consultation of the supervisory authority
(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 Client to issue instructions
(1) The Client shall immediately confirm oral instructions (at the minimum in text form).
(2) The Supplier shall inform the Client immediately if he considers that an instruction violates Data Protection Regulations. The Supplier shall then be entitled to suspend the execution of the relevant instructions until the Client 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 Client, 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 Client, at the latest upon termination of the Service Agreement, the Supplier shall hand over to the Client 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 Order or 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 Client at the end of the contract duration to relieve the Supplier of this contractual obligation.
Appendix 1 – Technical and Organisational Measures
1. Confidentiality (Article 32 Paragraph 1 Point b GDPR)
• Physical Access Control. No unauthorised access to Data Processing Facilities.
o Offices and data centres are only accessible to authorized persons and other persons accompanied by them
o Lockable rooms with a manual locking system where only staff and cleaning staff have a key
o Key reception on entry and exit from the company will be acknowledged
o Careful selection of cleaning personnel
• Electronic Access Control. No unauthorised use of the Data Processing and Data Storage Systems.
o Assignment of user rights
o Password assignment, authentication with user name and password, confidential handling of passwords
o Password creation policy for servers
o Key control
o Use of anti-virus software
o Creation of user profiles, use of VPN technology; use of a software firewall
o Assignment of authorizations and their documentation by the Manager IT Operations in accordance with management instructions
• Internal Access Control (permissions for user rights of access to and amendment of data). No unauthorised Reading, Copying, Changes or Deletions of Data within the system.
o Authorization concept
o Number of administrators reduced to the bare minimum
o Physical erasure of data carriers before reuse; use of shredders
o Administration of rights by system administrators
o Proper destruction of data carriers
• Isolation Control. The isolated Processing of Data, which is collected for differing purposes.
o Logically separated storage on separate systems or data carriers
o Creation of an authorization concept
o Separation of production and test system
• Pseudonymisation (Article 32 Paragraph 1 Point a GDPR; Article 25 Paragraph 1 GDPR). 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 organisational measures.
o The systems described in the service agreement can be used by the parties with pseudonyms (“Privacy by Default”).
2. Integrity (Article 32 Paragraph 1 Point b GDPR)
• Data Transfer Control. No unauthorised Reading, Copying, Changes or Deletions of Data with electronic transfer or transport.
o Installation of VPN tunnels (Virtual Private Networks)
o For physical transport: careful selection of transport personnel and transport vehicles and confirmation of collection and receipt
o Personal data is only transmitted in encrypted form
• Data Entry Control. Verification, whether and by whom personal data is entered into a Data Processing System, is changed or deleted.
o Accesses, especially during the entry, modification and deletion of data, as well as failed login attempts are logged
o A multi-level authorization concept ensures that different users have different rights to enter, change and delete data
o Access is via individual user names and passwords
3. Availability and Resilience (Article 32 Paragraph 1 Point b GDPR)
• Availability Control. Prevention of accidental or wilful destruction or loss.
o Regular testing of data recovery
o Storage of data backups in a secure, outsourced location
o Creation of a backup & recovery concept
• Rapid Recovery (Article 32 Paragraph 1 Point c GDPR) (Article 32 Paragraph 1 Point c GDPR);
o Redundant systems
o Load balancing
o Continuous backups
o Ongoing monitoring of the systems with notification of failures
4. Procedures for regular testing, assessment and evaluation (Article 32 Paragraph 1 Point d GDPR; Article 25 Paragraph 1 GDPR)
• Data Protection Management;
• Incident Response Management;
• Data Protection by Design and Default (Article 25 Paragraph 2 GDPR);
• Order or Contract Control. No third-party data processing as per Article 28 GDPR without corresponding instructions from the Client.
o Careful selection of subcontractors (in particular with regard to data security)
o Instructions in writing to the contractor (e.g. by data processing contracts)
o Obligation of the contractor’s employees to data secrecy
o Assignment of rights to input
o Formalised order management
o Duty of pre-evaluation
o Supervisory follow-up checks