DATA PROCESSING AGREEMENT
This Data Processing Agreement (“DPA”) forms an integral part of the Customer Agreement Terms and Conditions between BlueFox, the Processor – hereinafter referred to as the Supplier – and its Customer, the Controller – hereinafter referred to as the Client – to reflect the parties’ agreement with regard to the processing of personal data of Customer, in accordance with the requirements of data protection laws.
1. 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. The EU Commission recognizes that the EU-US Privacy Shield, comprising the privacy principles applicable to certified US organizations (companies) and related commitments made by the US Department of Commerce and various other US authorities, provides an adequate level of protection for personal data* transferred from the EU to those organisations. BlueFox has obtained the Privacy Shield compliance on October 19, 2017.
(2) Type of Data
The type of personal data used is MAC addresses and telephone numbers or chat app identifier of individuals.
(3) Categories of Data Subjects
The Categories of Data Subjects are individuals using Wi-Fi connected mobile devices in Client’s venues.
The duration of this Order or Contract corresponds to the duration of the Service Agreement.
2. 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.
3. 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.
4. 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:
Appointed Data Protection Officer, who performs his/her duties in compliance with Articles 38 and 39 GDPR. The Client shall be informed of his/her contact details for the purpose of direct contact. The Client shall be informed immediately of any change of Data Protection Officer.
The Supplier has appointed Mr/Ms Andrea Le Vot, firstname.lastname@example.org, as Data Protection Officer. The Client shall be informed immediately of any change of Data Protection Officer.
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.
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].
The Client and the Supplier shall cooperate, on request, with the supervisory authority in the performance of its tasks.
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.
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.
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.
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 Supplier may commission subcontractors (additional contract processors) only after prior explicit written or documented consent from the Client.
(3) The transfer of personal data from the Client to the subcontractor and the subcontractor's 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 by appropriate measures. The same applies if service providers are to be used within the meaning of Paragraph 1 Sentence 2.
6. 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 certification according to an approved certification procedure in accordance with Article 42 GDPR;
(4) The Supplier may claim remuneration for enabling Client inspections.
7. 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:
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.
The obligation to report a personal data breach immediately to the Client
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.
Supporting the Client with its data protection impact assessment
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.
8. 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.
9. 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 backup 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 has 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 – Technical and Organisational Measures
1. Confidentiality (Article 32 Paragraph 1 Point b GDPR)
2. Integrity (Article 32 Paragraph 1 Point b GDPR)
3. Availability and Resilience (Article 32 Paragraph 1 Point b GDPR)
4. Procedures for regular testing, assessment and evaluation (Article 32 Paragraph 1 Point d GDPR; Article 25 Paragraph 1 GDPR)
No third party data processing as per Article 28 GDPR without corresponding instructions from the Client, e.g.: clear and unambiguous contractual arrangements, formalised Order Management, strict controls on the selection of the Service Provider, duty of pre-evaluation, supervisory follow-up checks.