Data Processing Agreement
.svg)
Data Processing Agreement
Unless regulated in a different sign processing agreement, this data processing agreement shall be understood as applicable between Mercell Company and the customer/user of Mercell.
This data processing agreement is based on the template for a standard data processing agreement presented by the Danish Data Protection Agency to the European Privacy Council (EDPB), and which has status as a standard in Denmark, cf. Article 28, number 3 in Regulation 2016/679 of the European Parliament and of the Council (the Privacy Regulation / GDPR).
For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)
between
Customer, user
(the data controller)
Mercell company.
For the purpose of the Data processing agreement, the term "Mercell company” shall be understood as the legal entity that is part of the Mercell Group that has a relation with the customer; this information is stated to the customer in the order confirmation.
(the data processor)
each a ‘party’; together ‘the parties
HAVE AGREED on the following contractual clauses (the Clauses) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.
1. Table of Contents
2. Preamble
3. The rights and obligations of the data controller
4. The data processor acts according to instructions
5. Confidentiality
6. Security of processing
7. Use of sub-processors
8. Transfer of data to third countries or international organizations
9. Assistance to the data controller
10. Notification of personal data breach
11. Erasure and return of data
12. Audit
13. The parties’ agreement on other terms
14. Commencement and termination
15. Data controller and data processor contacts/contact points
Appendix A Information about the processing
Appendix B Authorised sub-processors
Appendix C Instruction pertaining to the use of personal data
Appendix D Updates
2 Preamble
These Clauses set out the rights and obligations of the data controller and the data processor when processing personal data on behalf of the data controller.
The Clauses have been designed to ensure the parties’ compliance with Article 28 (3) of Regulation 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 and repealing Directive 95/46/EC (General Data Protection Regulation).
In the context of the agreement governing the delivery of the subscription for the use of one of the following Platforms:
- Cloudia
- CTM
- ETHICS
- MSS/MTS
- Negometrix3
- Opic
- Source-to-Contract
- Tendsign
- Udbudsvagten
- P2P
- Comcare
- Truelink
- Ibistic
(the “Agreement”) entered into between the data controller and the data processor, the data processor will process personal data on behalf of the data controller in accordance with the Clauses.
The Clauses shall take priority over any similar provisions contained in the Agreement between the parties.
Four appendices are attached to the Clauses and form an integral part of the Clauses.
Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.
Appendix B contains the data controller’s conditions for the data processor’s use of sub-processors and a list of sub-processors authorised by the data controller.
Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum security measures to be implemented by the data processor and how audits of the data processor and any sub-processors are to be performed.
Appendix D contains provisions for other activities which are not covered by the Clauses.
The Clauses along with appendices shall be retained in writing, including electronically, by both parties.
The Clauses shall not exempt the data processor from obligations to which the data processor is subject pursuant to the General Data Protection Regulation (the 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 Clauses.
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.
The data controller shall be responsible for ensuring that the data subjects have received the necessary information about the processing of the personal data.
The data controller shall be responsible for carrying out adequate risk assessments.
The data controller shall ensure that the data processor has sufficient instructions and information at all times to fulfil its obligations under these Clauses and applicable data protection laws.
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 appendices A and C. 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 Clauses.
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 list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.
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:
pseudonymisation and encryption of personal data;
the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services;
the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational 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 require further measures to be implemented by the data processor, than those already implemented by the data processor pursuant to Article 32 GDPR, the data controller shall specify these additional measures to be implemented in Appendix C.
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 has the data controller’s general authorisation for the engagement of sub-processor(s) from an agreed list (Appendix B). The data processor shall specifically inform the data controller in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data controller the opportunity to reasonably object to such changes prior to the engagement of the concerned sub-processor(s). The data controller shall notify the data processor of such reasonable objections in writing within 30 days after receipt of the data processor’s notice relating to such change of sub-processors.
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 Clauses 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 Clauses and the GDPR.
The data processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the data processor is subject pursuant to the Clauses 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 Clauses 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 its data protection obligations, the data processor’s liability shall be limited, per contract year, to an amount equal to the yearly value of the Agreement 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.
The data processor is free to use any company within the same group (parent company, branch company, affiliated company) as long as the company operates within the EEA.
8 Transfer of data to third countries or international organizations
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.
The data controller’s instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.
The Clauses shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and the Clauses 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 in Chapter 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:
- the right to be informed when collecting personal data from the data subject
- the right to be informed when personal data have not been obtained from the data subject
- the right of access by the data subject
- the right to rectification
- the right to erasure (‘the right to be forgotten’)
- the right to restriction of processing
- notification obligation regarding rectification or erasure of personal data or restriction of processing
- the right to data portability
- the right to object
- 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 6.3., 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:
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 competent supervisory authority,, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;
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;
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);
the data controller’s obligation to consult the competent supervisory authority,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.
The parties shall define in Appendix C the appropriate technical and organisational measures by which the data processor is required to assist the data controller as well as the scope and the extent of the assistance required. This applies to the obligations foreseen in Clause 9.1. and 9.2.
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:
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;
the likely consequences of the personal data breach;
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.
The parties shall define in Appendix C all the elements to be provided by the data processor when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.
11 Erasure and return of data
On termination of the provision of personal data processing services, the data processor shall be under obligation to delete existing copies unless Union or Member State law requires storage of the personal data.
The data controller shall cover the data processor's documented costs for the erasure and return of data, unless such costs are included in the data processor´s remuneration according to the Agreement between the parties.
12 Audit
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 Clauses and allow for and contribute to audits conducted by the data controller or an independent auditor mandated by the data controller.
Procedures applicable to the data controller’s audits of the data processor and sub-processors are specified in appendices C.7. and C.8.
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 The parties’ agreement on other terms
The parties may agree on other clauses concerning the provision of the personal data processing service specifying e.g. liability, as long as they do not contradict directly or indirectly the Clauses or prejudice the fundamental rights or freedoms of the data subject and the protection afforded by the GDPR.
Liability for material or non-material damage upon a data subject shall be regulated according to the GDPR article 82. The data processor shall under no circumstance be liable for indirect losses resulting from a breach of the Clauses. Any liability of the data processor under the Clauses shall be capped at the annual value of the Agreement.
14 Commencement and termination
The Clauses shall become effective on the date of both parties’ signature.
Both parties shall be entitled to require the Clauses renegotiated if changes to the law or inexpediency of the Clauses should give rise to such renegotiation.
The Clauses 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 Clauses cannot be terminated unless other Clauses 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 11.1. and Appendix C.4., the Clauses may be terminated by written notice by either party.
Signature
On behalf of the data controller
Name
Position
Date
Signature
On behalf of the data processor
Name Hans R. Borge
Position Group Legal & Compliance Director
Date 19 September 2023
Signature
15 Data controller and data processor contacts/contact points
The parties may contact each other using the following contacts/contact points:
The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.
dpo@mercell.com
Appendix A Information about the processing
A.1. The purpose of the data processor’s processing of personal data on behalf of the data controller is:
For tender and public procurement platforms Communicate and store personal data which the Controller has transferred to participants in competitions in the portal.
Storage processing of personal data in the relationship of invoicing and order management
A.2. The data processor’s processing of personal data on behalf of the data controller shall mainly pertain to (the nature of the processing):
Communication and storage of personal data from buyers and suppliers
A.3. The processing includes the following types of personal data about data subjects:
Unstructured information in competition documents uploaded by the user of the portal that may contain personal data.
Name, address, e-mail, phone number, nationality, gender, employer, language, electronic identity information, IP address, access log, cookies, correspondence, education or work experience, post-qualifying education – course or certification, participation or absence, client agreement, employment contract, jobtitle.invoice
A.4. Processing includes the following categories of data subject:
Liason/employee at customer/supplier
User of system
Inhabitant of state or municipality
Data subject identified in documentation uploaded by the customers
A.5. The data processor’s processing of personal data on behalf of the data controller may be performed when the Clauses commence. Processing has the following duration:
The processing is not time-limited and lasts until the termination of the Agreement.
Appendix B Authorised sub-processors
All subprocessor can be seen here: Authorized Subprocessors used by Mercell
Appendix C Instruction pertaining to the use of personal data
C.1. The subject of/instruction for the processing
The data processor’s processing of personal data on behalf of the data controller shall be carried out by the data processor performing the following:
Communicate and store personal data which the Controller has transferred to participants in competitions in the portal
C.2. Security of processing
The level of security shall take into account:
The data processor shall hereafter be entitled and under obligation to make decisions about the technical and organisational security measures that are to be applied to create the necessary (and agreed) level of data security.
- Pseudonymization and encryption where appropriate,
- Ensuring ongoing confidentiality, integrity, availability and resilience of systems used,
- Protection of data during storage and transmission,
- Physical security of locations
- Firewall
- Backup
- Log management: Home use of home/remote working and logging, is only allowed when the employee implement, such as virtual private networks (VPNs), which encrypt their connections and safeguard data transmission. Multi-factor authentication are inforced in Mercell system thus only authorized individuals can access company systems and data. Additionally, employees have received comprehensive training on best practices for securing their home networks and devices, including keeping software and antivirus programs up to date, using secure Wi-Fi networks, and avoiding the use of personal devices for work-related activities whenever possible. Our internal It department keep a record of all the access to the Mercell system and IP of the employees to easily identify any access to our system. Any suspicious Regular communication channels should are established to address security concerns, provide guidance, and ensure employees remain vigilant against phishing attempts and social engineering attacks.
- Access Controls: Mercell has in place robust access controls to ensure that only authorized individuals can access personal data. Including strong passwords, multi-factor authentication, and regular access reviews.
- Regular Data Backups: Mercell establishes a regular backup system to ensure data availability and protect against data loss or corruption. Backups should be stored securely and tested for restoration.
- Incident Response Plan: Mercell uses an incident response plan to address security breaches, data breaches, or any unauthorized access to personal data. The plan outline steps to contain, investigate, mitigate, and notify affected individuals and authorities.
- User Training and Awareness: Mercell Conducts regular training sessions to educate employees on data protection principles, best practices, and potential security risks. This ensures that staff members are aware of their responsibilities and understand how to handle personal data securely.
- Data Retention and Disposal: Mercell counts with clear policies and procedures for the retention and disposal of personal data.
- Monitoring and Logging: Mercell has Implemented monitoring and logging mechanisms to detect and investigate any suspicious or unauthorized activities. This helps in identifying potential security incidents and facilitates forensic analysis if required.
- The data processor has an established security policy, privacy policy which is regularly updated, to ensure that this responsibility is taken care of in a good way.
C.3. Assistance to the data controller
The data processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the following technical and organizational measures:
The parties agree that no further technical and organizational measures are required in addition to what is already stated in the Clauses with Appendices.
The parties agree that the data processor is entitled to invoice the data controller elapsed time for the fulfilment of the points mentioned under C.3. and Clause 9. Hourly rate for this work is agreed to be the going market price for such services.
C.4. Storage period/erasure procedures
Upon termination of the provision of personal data processing services, the data processor shall delete existing copies in accordance with Clause 11.1.
C.5. Processing location
Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controller’s prior written authorization:
Please note that the place of processing will vary depending on the platform used by the customer, the customer can confirm the place of processing by checking the place of processing in the applicable table of the subprocessor list.
Additionally to those places of processing, Mercell group has Offices considered as places of processing in the following countries:
Norway,
Lithuania,
Estonia,
Sweden,
Netherlands,
Finland, and
Denmark
C.6. Instruction on the transfer of personal data to third countries
If the data controller does not in the Clauses or subsequently provide documented instructions pertaining to the transfer of personal data to a third country, the data processor shall not be entitled within the framework of the Clauses to perform such transfer.
Transfers to sub-processors listed in B.1, which are located outside the EEA according to their stated address, shall be regarded as being done on documented instructions from the data controller.
C.7. Procedures for the data controller’s audits of the processing of personal data being performed by the data processor
The data controller is entitled to appoint an independent representative bound by a duty of confidentiality to perform an audit to ascertain the data processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.
The data controller’s right to audit shall be subject to giving the data processor at least 4 weeks prior written notice of any such audit, or longer if necessary for the fulfillment of the audits. In a critical and urgent situation, the data controller can give written notice of audits only 1 week in advance.
The data processor has the right to object to the choice of independent representative which is appointed by the data controller. The data controller must inform the data processor about the appointed independent representative at the same time as the prior written notice about the audit is given.
The data controller’s costs, if applicable, relating to audits shall be carried by the data controller – including fees and other costs relating to the appointment of the independent representative.
The data processor shall, however, be under obligation to set aside the resources (mainly time) required for the data controller to be able to perform the audit.
C.8. Procedures for audits of the processing of personal data being performed by sub-processors
If sub-processors are used by the data processor, audits of such sub-processors shall be regulated in a separate agreement between the data processor and the sub-processor.
Documentation for such audits shall, without undue delay, be submitted to the data controller for information.
The data processor continues to bear full responsibility for the sub-processor's compliance with the GDPR, the applicable EU or Member State data protection provisions, and the Clauses.
Appendix D Updates
The data processor can previously inform the data controller, modify, update, or change sections to this document unilaterally.
