Data Processing Agreement

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Standard Contractual Clauses

For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)

Between

The Site Owner as identified in and having accepted to be a party to the Agreement on HOSTED PORTAL SERVICE entered into today, which by reference incorporates these Standard contractual Clauses as binding between the parties.

(the data controller)

and

Global Biodiversity Information Facility Secretariat,
CVR 29 08 71 56
Universitetsparken 15,
2100 København Ø
Denmark
(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.

Table of Contents
Preamble
The rights and obligations of the data controller
The data processor acts according to instructions
Confidentiality
Security of processing
Use of sub-processors
Transfer of data to third countries or international organizations
Assistance to the data controller
Notification of personal data breach
Erasure and return of data
Audit and inspection
The parties' agreement on other terms
Commencement and termination
Data controller and data processor contacts/contact points

Appendix A: Information about the processing
Appendix B: Authorized sub-processors
Appendix C: Instruction pertaining to the use of personal data
Appendix D: The parties' terms of agreement on other subjects

2. Preamble

These Contractual Clauses (the 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).
If the data controller has no establishment in the Union for the purposes of the processing activity and does not fall under the territorial scope of the GDPR as per Article 3(2), the processors obligation herein shall be interpreted and limited to take into account that the data controller is not subject to obligations under GDPR.
In the context of the provision of the services under the parties' AGREEMENT ON HOSTED PORTAL SERVICES entered into simultaneously with the Clauses, 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 other agreements 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 authorized 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 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 State¹ 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.

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 above-mentioned 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 organizational 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:

Pseudonymization 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 organizational 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 authorization 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 4 weeks in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). Longer time periods of prior notice for specific sub-processing services can be provided in Appendix B. The list of sub-processors already authorized by the data controller can be found in Appendix B.
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 organizational 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 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 organizations

Any transfer of personal data to third countries or international organizations 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 organizations, 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 Clauses:

transfer personal data to a data controller or a data processor in a third country or in an international organization
transfer the processing of personal data to a sub-processor in a third country
have the personal data processed in by the data processor in a third country

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 subject to Clause 2.3 assist the data controller by appropriate technical and organizational 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 subject to Clause 2.3 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 organizational 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 48 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 subject to Clause 2.3 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 all personal data processed on behalf of the data controller and certify to the data controller that it has done 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 Clauses and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.
Procedures applicable to the data controller's audits, including inspections, 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 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.

14. Commencement and termination

The Clauses shall become effective on the data controller's acceptance of the Agreement on HOSTED PORTAL SERVICE.
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.

15. Data controller and data processor contacts/contact points

The parties may contact each other using the following contacts/contact points:

Data controller: as specified by the data controller when accepting the Agreement on HOSTED PORTAL SERVICE

Data Processor:

Global Biodiversity Information Facility
Universitetsparken 15
DK-2100 Copenhagen Ø

Phone number: +45 35 32 14 70
E-mail address: info@gbif.org

The parties shall be under obligation continuously to inform each other of changes to contacts/contact points.

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:

To allow the data controller to use and benefit from the data processors hosted portal services, which includes, the hosting of the data controller's website, maintenance and support services.

As users interact with the Hosted Portals, the data processor may automatically collect technical data about equipment, browsing actions and patterns. Technical data may include information collected during visits to this website, the Internet Protocol (IP) address, browser type and version, device type, time zone and location setting, browser plug-in types and versions, operating system and platform.

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):

Hosting of portal and interaction with visitors

A.3. The processing includes the following types of personal data about data subjects:

Visitors interaction with data controller's portal, including user behaviour, links clicked, pages viewed, consents provided for cookies, IP-address. Hosting of any content the data controller or the data controller's users chooses to make available at the hosted portal.

The parties do not expect that the data processor will process GDPR art. 9 categories of personal data or other sensitive or confidential
personal data.

A.4. Processing includes the following categories of data subject:

Visitors and users of data controller's website

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:

Until the termination and expiration of the parties' AGREEMENT ON HOSTED PORTAL SERVICES.

Appendix B: Authorized sub-processors

B.1. Approved sub-processors

On commencement of the Clauses, the data controller authorizes the engagement of the following sub-processors:

NAME	CVR	ADDRESS	DESCRIPTION OF PROCESSING

The data controller shall on the commencement of the Clauses authorize the use of the above-mentioned sub-processors for the processing described for that party. The data processor shall not be entitled -- without the data controller's explicit written authorization -- to engage a sub-processor for a 'different' processing than the one which has been agreed upon or have another sub-processor perform the described processing.

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:

Setting up the portal and importing data controller's content
Hosting the portal and any content
Administration of user consents to use of cookies
Providing data controller access to the platform

C.2. Security of processing

The data processor shall be entitled and under obligation to make decisions about the technical and organizational security measures that are to be applied to create the necessary (and agreed) level of data security.

C.3. Assistance to the data controller

The data processor shall subject to Clause 2.3 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.

C.4. Storage period/erasure procedures

Upon termination of the provision of personal data processing services, the data processor shall delete the personal data 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:

The Hosted Portal and any content is hosted on servers maintained by the data processor, located within a data centre of the University of Copenhagen:

Panum, Københavns Universitet
Blegdamsvej 3B
2200 København Ø

This address may be changed to a different data centre provided by the University of Copenhagen without written authorization.

C.6. Instruction on the transfer of personal data to third countries

The hosted portal and the content are by virtue of its very nature accessible by users through internet connections from anywhere in the world.

The data processor is authorized to transfer any and all data under this data processor agreement to the data controller or the data controllers representatives or to any other recipient the data controller instruct the data processor to transfer data to, wherever in the world the data controller or the data controllers representatives or the recipient instructed by the data controller are established. The data controller warrants that it has ensured a lawful basis for any such transfers.

Except as specified above and unless the data controller 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.

C.7. Procedures for the data controller's audits, including inspections, of the processing of personal data being performed by the data processor

The data controller or the data controller's representative shall have access to inspect, including physically inspect, the places, where the processing of personal data is carried out by the data processor, including physical facilities as well as systems used for and related to the processing 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 will send any request for an inspection or audit under Section 12.2 to the data processor with at least 4 weeks' notice.

The data processor and the data controller will discuss and agree in advance on the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any audit or inspection.

Any audit or inspection requested by the data controller will be for the data controller's costs. The data processor may charge a reasonable fee for any audit or inspection. The data processor will provide the data controller with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.

The data processor may object to any third party auditor appointed by the data controller to conduct any audit if the auditor is, in the data processor's reasonable opinion, not suitably qualified or independent, a competitor of the data processor or otherwise manifestly unsuitable. Any such objection by the data processor will require the data controller to appoint another auditor or conduct the audit itself.

Where a sub-processor makes available security audit reports, certifications, or declarations etc. the data controller may request access to such reports. The data controller accepts that the data processors audit of processing performed by sub-processors are carried out by review of such available security audit reports, certifications, or declarations. The data controller acknowledges and accept that audits of sub processors may be subject to standard terms provided by such sub processors.

Appendix D: The parties' terms of agreement on other subjects

Ad Clause 4.1 and 6.3: If the data controller amends or change its instructions or require additional measures to be taken under Clause 4.1. or 6.3. the data processor may either require compensation its increased costs incurred due to such amendments, changes or additional measures, or terminate the Agreement on Hosted Portal Services with a notice to expire simultaneously with the effective data for the data controllers amendments, changes or additional measures. The data processor cannot require compensation or terminate the agreement if additional measures are required for the data processor to be compliant with obligations which directly apply to the data processor under GDPR.
Ad. Clause 7.3: If the data controller objects to the appointment or replacement of a data processor under Clause 7.3 the data processor may terminate the Agreement on Hosted Portal Services and the Clauses with a notice to expire simultaneously with the intended data of appointment or replacement of a data processor.
The data processor shall be liable towards the data controller or towards data subjects for damages caused by processing only where the data processor has not complied with its obligations under the GDPR or where the data processor has acted outside or contrary to the lawful instructions of the data controller. To the extent data subjects claim compensation from the data processor, then the data controller will indemnify and reimburse the data processor for any claim which is not due to the data processors violation of the Clauses or the GDPR or for any amount exceeding EUR 25,000.
The data processors assistance to the data controller for the fulfillment of the data controller's obligations cf. Clause 9 and for participation in audits cf. Clause 12 and C.7 is subject to payment of compensation to the data processor based on a market conform applicable hourly rate.

1. [References to "Member States" made throughout the Clauses shall be understood as references to "EEA Member States".]↩