Umowa powierzenia przetwarzania danych z Smartplan

Created: 28 February, 2025 - 10:48

For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)
Between the Customer and Smartplan (together with the Customer, the "Parties" and separately a "Party")

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 organisations
9. Assistance to the data controller
10. Notification of personal data breach
11. Erasure and return of data
12. The parties' agreement on other terms
13. Audit and inspection
14. Commencement and termination

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

2. Preamble

2.1. 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.

2.2. 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).

2.3. In the context of the provision of the personal data processing service, the data processor will process personal data on behalf of the data controller in accordance with the Clauses.

2.4. The Clauses shall take priority over any similar provisions contained in other agreements between the parties. The Clauses are an appendix to any other agreements.

2.5. Four appendices are attached to the Clauses and form an integral part of the Clauses.

2.6. 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.

2.7. 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.

2.8. 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.

2.9. Appendix D contains provisions for other activities which are not covered by the Clauses.

2.10. The Clauses along with appendices shall be retained in writing, including electronically, by both parties.

2.11. 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

3.1. 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.

3.2. The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.

3.3. 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

4.1. 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.

4.2. 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

5.1. 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.

5.2. 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

6.1. 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 organisational measures for ensuring the security of the processing.

6.2. 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.

6.3. 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

7.1. The data processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).

7.2. The data processor shall therefore not engage another processor (sub-processor) for the fulfilment of the Clauses without the prior general written authorisation of the data controller.

7.3. The data processor has the data controller's general authorisation 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 1 month 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 authorised by the data controller can be found in Appendix B.

7.4. 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.

7.5. 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.

7.6. The data processor shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of the data processor – the data controller shall be a third-party beneficiary to the sub-processor agreement and shall have the right to enforce the agreement against the sub-processor engaged by the data processor, e.g. enabling the data controller to instruct the sub-processor to delete or return the personal data.

7.7. 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 organisations

8.1. 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.

8.2. 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.

8.3. 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 by the data processor in a third country

8.4. 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.

8.5. 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

9.1. 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

9.2. 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.

9.3. 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

10.1. 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.

10.2. 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.

10.3. 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.

10.4. 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

11.1. 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 so unless Union or Member State law requires storage of the personal data.

12. Audit and inspection

12.1. 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.

12.2. 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.

12.3. 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

13.1. 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

14.1. The Clauses shall become effective on the date of both parties' agreement to the service to which the Clauses are an appendix.

14.2. 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.

14.3. 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.

14.4. 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.

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:

Category	Purpose
Employees	That the data controller can use Smartplan, which is owned and run by the data processor, to collect and process the necessary information about the employees in order to be able to manage their shift planning online.

A.2. The data processor's processing of personal data on behalf of the data controller shall mainly pertain to the mentioned services in appendix D or the head agreement.

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

Regular personal data (e.g. name, address, email, phone number etc.)

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

Category	Description
Employees	Employees participating in the data controller's shift schedule

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 performed as long as the agreements between the parties to provide the service is binding.

Appendix B — Authorised sub-processors

B.1. Approved sub-processors

Sub-processor	Address	Service	Description	Purpose	Processing location
Amazon Web Services Ireland Ltd.	Burlington Plaza, Burlington Road	AWS (Amazon Web Services) hosting	AWS on-demand cloud computing platform & hosting	Smartplan uses AWS to host services	Ireland
MessageBird B.V.	Keizersgracht 268, 1016 EV Amsterdam, The Netherlands	Bird CRM, Marketing, Sales, Payments	CRM, Marketing, Sales, Payments, Communications platform	Smartplan uses MessageBird to send transactional SMS	Netherlands
ActiveCampaign, LLC	1 North Dearborn Street, 5th floor Chicago, IL 60602	Postmark	Transaction email services	Smartplan uses Postmark to send transactional email	United States

The data controller shall on the commencement of the Clauses authorise the use of the abovementioned sub-processors for the processing described for that party. The data processor shall not be entitled – without the data controller's explicit written authorisation – 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 processing of personal information on behalf of the data controller happens as the data processor delivers the service described in the main agreement or in appendix D.

C.2. Security of processing

Risk Assessment: We continuously make risk assessments using our risk assessment model.

Overall we find a low risk in regards to our data processing of personal data.

With regards to consequence and seriousness we find that during a data breach, a person can experience inaccuracy that can be overcome without much effort and will be mostly affected on time spent and irritation.

With regards to likeliness, we find it highly unlikely that one of the known techniques can lead to a data breach within a year.

Our security measures are developed with privacy by design. This also means that all new features added to the data processor's service are developed with protection of personal data in mind.

As a minimum we have the following technical and organisational measures:

Technical safety measures:

• SSL-encryption with client and server
• User passwords are encrypted
• Ongoing backups and logging
• Sub processors are located in EU
• Production environment are separated from development and test environment
• Extra safety measures at customer service login in support system

Organisational measures:

• All employees are instructed in handling personal data and the protection of it. They have signed an instruction document.
• The instruction document is updated at least once a year.
• The instruction document is always signed by new employees.
• All employees are under confidential agreement.
• The overall responsibility for compliance is on the data processor's management.
• Personal data is only accessible for employees with approval and reason.

Production safety:

• Development, test and production environments are separate.
• Capacity is monitored on an ongoing basis to secure the production environment.
• Ongoing change in passwords on both internal and external systems.
• Logging and alarm of failed login attempts.

C.3. Assistance to the data controller

The data processor shall insofar as this is possible assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the relevant technical and organisational measures.

C.4. Storage period/erasure procedures

Personal data processed by the service is stored until the data controller requests them deleted or returned, unless something else is agreed in appendix D or in the main agreement.

Upon termination of the provision of personal data processing services, the data processor shall either delete the personal data in accordance with Clause 11.1., unless the data controller – after the signature of the contract – has modified the data controller's original choice. Such modification shall be documented and kept in writing, including electronically, in connection with the Clauses.

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 authorisation:

At the data processor's and sub-processors' location.

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

Where a transfer of personal data occurs between Smartplan and a sub-data processor located outside of the EEA, the transfer of personal data will include one of the following appropriate safeguards, as applicable:

(i) The adoption by the parties of the EU model clauses resulting from the EU Commission implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.

(ii) Any other appropriate safeguards recognized by the European Data Protection Regulation 2016/679 such as an adequacy decision, an approved code of conduct or an appropriate certification mechanism.

C.7. Verification of Data Processor's Compliance

1. Confirmation of Compliance — Upon the Data Controller's written request, the Data Processor shall promptly provide a confirmation that it continues to comply with the GDPR, applicable EU or Member State data protection provisions, and the Clauses of this Data Processing Agreement.

2. Documentation or Statement of Compliance — The Data Processor may fulfill this obligation by completing a questionnaire or supplying a formal statement of compliance, as reasonably requested by the Data Controller.

3. Additional Measures — Where the Data Controller becomes aware of or suspects any non-compliance, the Data Processor shall, upon reasonable notice, provide any further explanations or clarifications necessary to resolve the concern and/or restore compliance.

4. Costs — Unless otherwise agreed, each Party shall bear its own costs related to providing or reviewing such confirmations, statements, or clarifications under this Clause.

C.8. Procedures for audits, including inspections, of the processing of personal data being performed by sub-processors

The auditor's report or inspection report shall cover the audits performed by the data processor of possible sub-processors. The audits shall have the same scope as described under C.7.

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

The processing of personal data on behalf of the data controller mainly revolves around the following:

That the data processor gives the data controller access to Smartplan and hereby keeps personal data about the data controller's employees on the company's servers.

More specifically this is a cloud solution with a narrow purpose which the data controller can use to plan employee shifts.

Data processed: Name, email, phone number, positions, meeting times according to planned shifts, changes in meeting times, absence, information about shifts, subscription information, technical information about the employee's unit, user id, events by the employee in Smartplan.

The data processing agreement and the "main agreement" are dependent on each other and can't be separately terminated. However the data processing agreement can — without terminating the "main agreement" — be replaced by another data processing agreement.

Data breach:

If a data breach happens, the data processor should document the facts on the breach, the circumstances, the consequences and the measurements to prevent further damage to the data controller and if the data processor is granted authorization to report the breach to the affected they will do so.

The parties' terms of agreement on other subjects are found in the agreements to which the Clauses is an appendix.

Appendix E

Ad. 7.6 is replaced with the following:

The data processor should in agreements with the sub-processor, if possible, add the data controller as a beneficiary third person in case of the data processor's bankruptcy, so that the data controller can stand in place of the data processor's rights towards sub-processors.