Agreement pertaining to commissioned data processing

Status: 2023-11

This Agreement refers to the Service Agreement closed between the Parties (hereinafter “Service Agreement”).

This involves the processing of personal data by the Processor on behalf of the Controller in accordance with Art. 28 GDPR (hereinafter referred to as the “Contract”).

This Agreement shall apply to all activities in connection with the Service Agreement and during which the employees of or persons commissioned by the Processor may or may not come into contact with the personal data of the Controller.

§ 1 Subject matter and duration of the Contract

(1) The subject matter of this Contract is derived from the Service Agreement. Essentially, this concerns the operation and maintenance of the Transport Management System ‘Scope’.

(2) The duration of the Contract (term) is equal to the term of the Service Agreement. In addition, this Agreement shall also apply to contract related data processing activities to be carried out either prior to the commencement or following the expiry of the Service Agreement.

§ 2 Details of the substance of the Contract

(1) The type of personal data used as well as the nature and purpose of the processing of personal data by the Processor on behalf of the Controller are described in detail in the following.

(2) In the context of software development, the processor uses anonymized test data for the safe commissioning of the software as well as for the prevention and correction of errors in the production environment. In some cases, it may be necessary to use real data for these purposes because test data cannot fully represent operations. In that regard, the processor is allowed to use real data for limited periods in justified cases. These cases will be documented accordingly. The contractor will ensure compliance with the measures agreed in this Contract.

(3) The subject matter of the Contract generally comprises the following types of personal data and categories of data subjects.

a) Customers (names, addresses, contact details, including telephone, fax and email data, contract information, general information, bank details, billing and payment data)

b) Prospective customers / non-customers (names, addresses, contact details, including telephone, fax and email data, areas of interest, quotation data)

c) Employees, trainees, interns, former employees (essentially personal data, such as names, addresses, contact details, including telephone, fax and email data, areas of work)

d) Suppliers / service providers / commercial agents (names, addresses, contact details, including telephone, fax and email data, bank details, contractual relationships, time management data, billing and performance data)

e) Access rights of the active/configured employees within the application; as well as the signature in form of an image file (if required)

(4) The data will be stored within the territory of a Member State of the European Union or another signatory to the Agreement on the European Economic Area. Movement of data to a third country is only permissible where of the special requirements set down in Art. 44 ff. GDPR are complied with.

§ 3 Technical and organizational measures

(1) Prior to being awarded the contract, the Processor has provided sufficient guarantees that the technical and organizational measures are implemented in such manner that the processing will meet the requirements of the GDPR. These are accordingly documented by the Processor and presented to the Controller for inspection. If accepted by the Controller, these documented measures will form the basis of the Contract. These agreed technical and organizational measures are available at the following link: https://legal.riege.com/en-de/toms-en (hereinafter: Appendix TOM). In as far as a review/audit on the part of the Controller raises the need for amendments, these must be applied amicably, in as far as these are not contrary to the operational or economic needs of the Processor. In the case where compliance with the legal data protection provisions was, in principle, previously guaranteed, the Controller shall reimburse the Processor for the costs incurred as a result of this support.

(2) The technical and organizational measures are subject to technical and organizational progress and development. In this respect, the Processor is permitted to implement adequate alternative measures. These must not, however, fall short of the level of security provided by the specified measures. Major changes must be documented.

(3) All in all, the measures set out in Appendix TOM are aimed at ensuring a level of security appropriate to the risk with respect to the confidentiality, integrity, availability and resilience of the processing systems. These measures take 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 in accordance with Art. 32, para. 1 GDPR.

§ 4 Correction, blocking and deletion of data, provision of information

(1) The Processor shall only process personal data, if the Controller requests this in the Service Agreement or any other documented instructions.

(2) If a data subject should apply directly to the Processor with a request to correct or delete his data, the Processor must forward this request to the Controller without delay.

(3) Should the Controller be under obligation to provide certain individuals with information regarding the processing of the data, the Processor shall support the Controller in making this information available. This precludes that the Controller has already demanded in writing or in textual form that the Processor comply with this request and that any costs incurred through providing his support shall be accordingly reimbursed to the Processor. The Processor shall not respond to any requests for information without the prior written consent of the Controller and shall instead refer the data subject to the Controller.

(4) The Processor shall ensure that erasure (Right to be forgotten) according to Art. 17 GDPR, rectification according to Art. 16 GDPR and access according to Art. 15 GDPR shall only take place upon the instructions of the Controller which shall be documented accordingly.

§ 5 Controls and other responsibilities of the Processor

(1) The Processor herewith declares that when processing personal data within the context of commissioned data processing, all the agreed measures shall be implemented in accordance with the Contract. The Processor declares that the Processor is familiar with the respective data protection laws and provisions applicable to the Processor, in particular with the GDPR and the EU Data Protection Adaptation and Implementation Act. However, as between the Parties, the Controller is responsible for the lawfulness of the processing of personal data.

(2) The Processor is not authorized to pass on data to third parties. Copies may not be made without the knowledge of the Controller. This does not include backup copies, in as far as these are required to ensure correct and proper data processing, nor does it include data that are required with a view to observing statutory retention periods.

(3) In addition to the fulfillment of the terms of this Contract, the Processor also has a number of legal commitments in accordance with Art. 28 to 33 GDPR. The Processor shall ensure that the following requirements are met:

1. Written designation of a data protection officer in accordance with Art. 37 GDPR who shall complete his tasks in accordance with Art. 38 and 39 GDPR. His contact details are available at the following link: https://legal.riege.com/en-de/data-protection-officer

2. The Processor shall ensure that confidentiality is maintained in accordance with Art. 28, para. 3 s.2 (b) GDPR. The Processor shall only have tasks completed by employees that have committed themselves to confidentiality in writing and who were previously made familiar with those data protection provisions that are of relevance to them.

3. In accordance with Art. 28, para. 3, s.2 (a) GDPR, the Processor and any of his subordinates who have access to personal data may only process these data upon receiving documented instructions from the Controller, which includes the powers contained in this Contract, unless the Processor is required to carry out such processing by law. These instructions may either be in writing or in electronic form (Art. 28, para. 9 GDPR). The commitment to maintain confidentiality shall continue to apply beyond the end of this Contract.

4. The Processor shall implement and maintain all the technical and organizational measures agreed for this Contract in accordance with Art. 28, para. 3 s.2 (c) in conjunction with Art. 32 GDPR (please refer to the following website for details: https://legal.riege.com/en-de/toms-en).

5. The Processor shall inform the Controller without delay of any monitoring activities or measures on the part of the supervisory authority in as far as these are related to this Contract. This also applies in the case that a responsible authority investigates the Processor with regard to an offence or criminal proceedings connected with the processing of personal data within the context of commissioned data processing.

6. The Processor shall regularly examine his internal processes as well as the respective technical and organizational measures in order to ensure that all processing carried out in his area of responsibility is in compliance with the requirements of this contract and that the rights of the data subjects are accordingly protected.

7. The Processor is under obligation to provide evidence to the Controller of the technical and organizational measures taken. This evidence may also be provided through complying with approved codes of conduct in accordance with Art. 40 GDPR, through the presentation of an attestation, reports or extracts from reports provided by independent bodies (e.g. data protection officer) or suitable certification in accordance with an approved data protection certification procedure, as well as through a data protection seal in accordance with Art. 42 GDPR, an IT security or data protection audit (e.g. “IT basic security” as defined by the Federal Office for Information Security or ISO 27001) and the reports resulting from these audits, in as far as these refer to the measures effectively agreed upon.

8. The Controller and the Processor shall cooperate, on request, with the supervisory authority in accordance with Art. 31 GDPR. The responsible party shall compensate the processor for the expenses incurred.

9. The Processor shall assist the Controller in complying with the personal data security obligations, personal data breach notifications, data protection impact assessments and prior consultations referred to in Art. 32 to 36 of the GDPR. The Controller shall reimburse the Processor for the expenses incurred in the performance of this task.

(4) The Processor shall maintain a record of all processing activities in accordance with Art. 30, para 2 GDPR. The Processor shall make this processing record available to the supervisory authority on request in accordance with Art. 30, para. 4 GDPR. The Processor shall provide the Controller with the required information to create a record of the processing activities.

§ 6 Subcontractual relationship / Subcontractors

(1) The processing of data via tele workstations is permitted.

(2) The Controller herewith agrees that the Processor, in order to provide the contractually agreed services, may engage subprocessors with the provision of these services, resp. subcontract other companies to provide these services accordingly. If the Processor intends to use new subprocessors, the Controller shall have the opportunity to object to the addition or replacement of a subprocessor on objective grounds within a period of 30 days after notification by the Processor of an intended change. If the Controller does not object to the subprocessor within this period, the subprocessor may be commissioned to process personal data.

(3) The Processor shall structure the contractual agreements with the subcontractor in such a way that they comply with the data protection provisions in the contractual relationship between the Controller and the Processor.

(4) The Processor shall carefully select the subprocessor according to its suitability, with particular regard to the technical and organizational measures taken by it.

(5) Audits and inspections of subprocessors shall be carried out solely by the processor and its external auditors; if the Controller itself or its auditors intend to carry out a direct audit or inspection of the subprocessor, it shall issue a corresponding individual instruction in accordance with Section 9 (1).

(6) The subprocessors engaged by the Processor at the time of the conclusion of this Contract are available at the following website: https://legal.riege.com/en/subprocessors. The Controller confirms to have saved a permanent copy of the subprocessors engaged at the time of the conclusion of the Contract. Notification of new subprocessors shall be made by updating the website and by e-mail to the e-mail address provided by the Controller.

(7) A subprocessor relationship is understood to consist of such services that are directly related to providing the main service. Subcontracts in the meaning of this provision do not include ancillary services ordered by the Processor from third parties to assist in the performance of the Contract. These may include, for example, telecommunications services, postal and shipping services, external personnel services, cleaning staff or auditors. However, to safeguard the protection and security of data belonging to the Controller, even where ancillary services are awarded to third parties, the Processor is under obligation to conclude adequate and lawful contractual agreements and undertake respective monitoring activities.

§ 7 Rights and duties on the part of the Controller, duty to tolerate and obligation to cooperate on the part of the Processor

(1) According to Art. 28, para. 1 GDPR, the Controller is under obligation to only cooperate with processors that provide sufficient guarantees to implement appropriate technical and organization measures. The Controller herewith pledges to observe the legal requirements contained in the data protection laws, in particular, to ensure that the transfer of data to the Processor is lawful.

(2) The Controller has the right to check prior to the commencement of data processing that the data protection and contractual provisions are being observed on the part of the Processor and to follow this up with regular and appropriately-dimensioned audits - in consultation with the Processor - or, in individual cases, to appoint auditors/third parties who are subject to a professional duty to maintain confidentiality to do so, in as far as these are not in a competitive relationship with the Processor. The Processor is entitled to invoice any costs incurred as a result of these audits to the Controller.

(3) This includes, in particular, information collection on the part of the Processor, the review of the recorded data and data processing programs, as well as any other onsite audits. The Controller is entitled to carry out sample checks, generally to be announced at least 21 working days in advance, on the Processor’s business premises during normal business hours - without impeding business operations - in order to verify compliance with this Agreement by the Processor. The Processor is under obligation to be tolerant and cooperate with respect to the audit and, in particular, to provide the Controller with all the information and evidence required to be able to carry out the audit upon receipt of a written request to do so. This includes, for example, providing evidence that the technical and organizational measures (please refer here to § 5 (3) 10 of this Contract) are being accordingly implemented as well as proof that the approved codes of conduct in accordance with Art. 40 GDPR are being accordingly observed.

(4) The Controller shall inform the Processor immediately of any errors or irregularities determined whilst monitoring the results of the Contract.

(5) The obligation to maintain a record of processing activities in accordance with Art. 30, para. 1 GDPR is the responsibility of the Controller, respectively his representative. Upon request, the Controller shall make this processing record available to the supervisory authority (Art. 30, para. 4 GDPR).

§ 8 Notification in the case of data protection breaches

In the case of personal data breaches (e.g. the loss or unlawful transfer or disclosure of personal data), the Processor shall inform the Controller without undue delay - irrespective of the cause. The Processor must consult the Controller and take appropriate measures to secure the data and limit any possible detrimental effect on the data subjects.

§ 9 Controller’s authority to issue instructions

(1) The scope of Controller's instructions is defined by this Contract and the Service Agreement. Under the terms of the Contract as described in this Agreement, the Controller shall furthermore retain a general right of individual instruction as to the nature, scope and method of data processing. Insofar as an individual instruction goes beyond the agreed services of the Service Agreement, the Processor may claim reasonable remuneration for the implementation of such individual instructions In the event that the Processor notifies the Controller that an individual instruction cannot be complied with even in return for separate remuneration, the Controller may terminate the Service Agreement and this Agreement with seven working days' notice to the end of the month.

(2) All instructions must be communicated in writing. The Controller must confirm any oral instructions in writing or by email (in textual form) without delay. The Controller shall notify the Processor in text form which persons are authorized to give instructions; if no notification is given, all persons of the Controller shall be deemed to be authorized to give instructions. The recipients of instructions at the Processor can be found on the following website: https://legal.riege.com/en-de/data-protection-officer

(3) The Processor must inform the Controller, if the Processor believes that a specific instruction represents a breach of the legal data protection provisions. The Processor may then postpone the execution of the relevant instruction until it is confirmed or changed by the Controller. Should such a postponement affect the Service Levels, resp. deadlines, agreed between the Parties, these shall be accordingly suspended for the duration of the postponement period.

§ 10 Liability

(1) The Processor shall only be held liable for damage caused through processing, should he fail to fulfill the duties imposed upon him through the GDPR, or should he fail to observe the lawfully administered instructions of the Controller responsible for this data processing or act against such instructions.

(2) The Controller - or several controllers - and the Processor - or several processors - shall be jointly and severally liable for any damage caused by the processing in the case of commissioned data processing in accordance with Art. 82, para. 4 GDPR.

(3) In all other respects, the liability provisions and limitations of the Service Agreement shall apply.

§ 11 Deletion of data and return of data media

(1) Unless otherwise specified in the Service Agreement, the Processor shall, upon receipt of a separately billable individual commission from the Controller, return to the Controller all documents in the Processor´s possession and all the results compiled through processing and usage, as well as all data produced in connection with the Contract to the Controller, or delete these in compliance with data protection law upon the prior written instructions of the Controller; backup media are exempt from the obligation to surrender and delete data. The same applies to test data and scrap material. A confirmation of the deletion, resp. destruction, must be issued to the Controller in writing and state the respective date.

(2) The Processor is entitled and obliged to delete all personal data that are no longer required in order to fulfil the Contract, at the latest upon termination of the Service Agreement.

(3) All documentation which serves as proof that the data have been processed correctly and as contractually agreed must be kept by the Processor beyond the termination of this Contract in compliance with the respective retention periods. The Processor may relieve himself of his obligations with respect to such documentation by handing it over to the Controller upon expiry of the Contract.

(4) Steps must be taken to ensure that specific data media destined for processing/deletion are protected from unauthorized access and loss whilst in transit.

§ 12 Final provisions

(1) In all other respects, the provisions of the Service Agreement (including the General Terms and Conditions of the Processor) shall apply. In the event of a conflict, the provisions of this Agreement shall take precedence over the provisions set down in the Service Agreement.