FLUENTOS

Data Processing Agreement

between

Fluentos customer
(the “Customer” and the “data controller”)

and

Fluentos ApS
CVR: 43625683
Galaksen 73, 7100, Vejle, Denmark
(“Fluentos” and the “data processor”)

each a ‘party’; together ‘the parties’

HAVE AGREED on the following data processing agreement (the “Agreement”) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.

Background

  1. This Agreement sets out the rights and obligations of the Customer as data controller and Fluentos as data processor when processing personal data on behalf of the Customer.
  2. This Agreement has 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 (GDPR).
  3. In the context of the provision of customer engagement services by Fluentos to the Customer under Fluentos’ General Terms and Conditions (the “Main Agreement”), Fluentos will process personal data for which the Customer is responsible in accordance with this Agreement.
  4. This Agreement is based on the Danish Data Protection Agency’s standard contractual clauses and shall take priority over any similar provisions contained in other agreements between the parties.
  5. Four appendices are attached to this Agreement and form an integral part of this Agreement.
  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.
  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.
  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.
  9. Appendix D contains provisions for other activities which are not covered by this Agreement.
  10. This Agreement along with appendices shall be retained in writing, including electronically, by both parties.

The rights and obligations of the Customer as data controller

  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 EEA Member State data protection provisions and this Agreement.
  2. The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
  3. The data controller shall be responsible for ensuring that the processing of personal data, which the data processor is instructed to perform, has a legal basis.

The data processor acts according to instructions

  1. The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or EEA 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 this Agreement.
  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 EEA Member State data protection provisions.

Confidentiality

  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.
  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.

Security of processing

  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.
  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.
  3. Furthermore, the data processor shall assist the data controller in ensuring compliance with the data controller’s obligations pursuant to Article 32 GDPR, by providing the data controller with information concerning the technical and organisational measures already implemented by the data processor along with all other information necessary for the data controller to comply with the data controller’s obligation under Article 32 GDPR.

Use of sub-processors

  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).
  2. he data processor shall therefore not engage another processor (sub-processor) for the fulfilment of this Agreement without the prior general written authorisation of the data controller.
  3. The data processor has the data controller’s general authorisation for the engagement of sub-processors. The data processor shall inform the data controller in writing of any intended changes concerning the addition or replacement of sub-processors at least 14 days in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The list of sub-processors already authorised by the data controller can be found in Appendix B.
  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 this Agreement shall be imposed on that sub-processor by way of a contract, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Agreement and the GDPR.
  5. 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 this Agreement and the GDPR.
  6. 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 this Agreement 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. 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.
  8. 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.

Transfer of data to third countries or international organisations

  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.
  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 EEA 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.
  3. Without documented instructions from the data controller, the data processor therefore cannot within the framework of this Agreement:
    • 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
  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.
  5. This Agreement shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR, and this Agreement cannot be relied upon by the parties as a transfer tool under Chapter V GDPR.

Assistance to the data controller

  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 directly 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
  2. In addition to the data processor’s obligation to assist the data controller pursuant to Clause 5.3., 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.

Notification of personal data breach

  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.
  2. 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.
  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.
  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.

Erasure of data

  1. On termination of the provision of personal data processing services, the data processor shall 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 EEA Member State law requires storage of the personal data.

Audit and inspection

  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 this Agreement and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.
  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.
  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.

Commencement and termination

  1. This Agreement shall become effective on the date of both parties’ signature.
  2. Both parties shall be entitled to require this Agreement renegotiated if changes to the law or inexpediency of this Agreement should give rise to such renegotiation.
  3. This Agreement shall apply for the duration of the provision of personal data processing services. For the duration of the provision of personal data processing services, this Agreement cannot be terminated unless other Clauses governing the provision of personal data processing services have been agreed between the parties.
  4. This Agreement will automatically terminate upon termination of the provision of personal data processing services, and the deletion of personal data pursuant to Clause 10.1. and Appendix C.4.
  5. Acceptance

    _____________________________________
    For and on behalf of Fluentos ApS

    This Agreement has been pre-signed on behalf of the data processor and to accept this Agreement the data controller must read the Agreement and click accept where indicated.

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 provide a service which facilitates interaction and engagement between users of the Customer's website and the Customer’s website (“End Users”).

To provide a service which analyses the End Users’ use of the Customer’s website and analyses campaign performance such as numbers of clicks, views, event submissions and session count.

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):

The data processor will process personal data as necessary to provide the Services under the Main Agreement, including collection, encryption, decryption, storage, anonymization and statistical analysis.

A.3. Types of personal data about data subjects that will be processed:

The personal data processed will be 1) registration data of the Customer and users authorised by the Customer to use the Services provided under the Main Agreement and 2) the personal data of the End Users such as IP addresses as well as the personal data that the End Users input or upload to the Customer’s website.

The personal data inputted by End Users may include ordinary personal data (such as contact and registration details, including, for example, name, username, e-mail address, telephone number, postal address and a password), and sensitive personal data revealing a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning health or data concerning a person's sex life or sexual orientation.

The data controller undertakes not to allow the collection of End User’s sensitive personal data via the Services provided under the Main Agreement unless the data controller has obtained and can document the consent necessary to comply with the GDPR for the processing of those personal data.

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

Contact persons at the Customer, and users authorised by the Customer to use the Services provided under the Main Agreement.
End Users.

A.5. The data processor’s processing of personal data on behalf of the data controller may be performed when this Agreement commences. Processing has the following duration:

As long as the Main Agreement is in effect and the Data Processor is obligated to process personal data under that Agreement.

Appendix B Authorised sub-processors

B.1. Approved sub-processors

On commencement of this Agreement, the data controller authorises the engagement of the following sub-processors:

Name: Stripe Payments Europe, Ltd
Website: https://stripe.com
Description of processing: Payment service provider

Name: Cloudflare, Inc
Website: https://cloudflare.com
Description of processing: Content delivery network and DDoS mitigation services

Name: Amazon Web Services
Website: https://aws.amazon.com
Description of processing: Cloud service provider. EU Region.

Name: DigitalOcean, LLC
Website: https://www.digitalocean.com
Description of processing: Cloud service provider. EU Region.

Name: New Relic, Inc
Website: https://newrelic.com
Description of processing: Infrastructure monitoring service provider. EU Region.

Name: Instatus, Inc
Website: https://instatus.com
Description of processing: Systems status page.

The data controller authorises the use of the abovementioned sub-processors for the processing described for that party.

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 collecting, encrypting, decrypting, storing, anonymizing, analyzing and transferring the data in order to provide the Services under the Main Agreement.

C.2. Security of processing

The level of security reflects the nature of the personal data to be processed, and takes into account that the processing may involve some processing of sensitive personal data which are subject to Article 9 GDPR on ‘special categories of personal data’ which is why the processing is subject to a high level of security.

The data processor is entitled to and has made decisions about the technical and organisational security measures that are applied to create the necessary (and agreed) level of data security.

The data processor shall – in any event and at a minimum – implement the following measures that have been agreed with the data controller:

Measures for pseudonymisation and encryption of personal data
End users’ data at rest is encrypted using Advanced Encryption Standard (AES).
The data processor encrypts personal data transmitted over public networks between the Customer, End Users and the Fluentos application using TLS 1.2 or higher.

Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
The data processor monitors each customer facing endpoint for anomalies including server loads and response time and acted in case of deviation. Additionally, endpoints are protected using Web Application Firewall to mitigate attacks and disruption of the services. All the underlying servers are constantly updated with newest security patches and security policies are reviewed for the ongoing access to the servers.

Measures for the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Different availability zones would be used in the event of access loss. The data processor maintains data backup it stores that supports core functionalities of the application.

Measures/ processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing
Quarterly security scans provided by authorised sub-processors ensure industry accepted standards are used and applied correctly.
Internal code is constantly audited against vulnerability database and in case of high severity cases, the code is updated accordingly to eliminate the issue.
Annual vulnerability scanning of the customer facing endpoints and website for known vulnerabilities and address any vulnerabilities found.

Security measures for access to data online
Customer facing data retrieval endpoints uses mandatory authentication security token which is validated with every request and is issued by an authorization service provider.

Measures for the protection of data during transmission
The data processor encrypts data transmitted over public networks between Customers, End Users and the Fluentos application using TLS 1.2 or higher.

Measures for the protection of data during storage
End User’s submitted data at rest is encrypted using Advanced Encryption Standard (AES) protocol.

C.3. Storage period/erasure procedures

The data processor offers delete account functionality which immediately and permanently will erase all collected / uploaded personal data, except for the data that the data processor is required by Union or EEA Member State law to store for a longer period of time.

C.4. Instruction on the transfer of personal data to third countries

Personal data shall be transferred to third countries as the Data Processor deems necessary or expedient in order to provide the Services to the Customer under the terms of the Main Agreement.

A transfer to a third country may take place where the European Commission has decided that the third country in question ensures an adequate level of protection or where appropriate safeguards are provided for by adoption of the standard data protection clauses adopted by the European Commission in accordance with the examination procedure referred to in Article 93(2).

C.5. Procedures for the data controller’s audits, including inspections, of the processing of personal data being performed by the data processor

The data controller may, at its own cost, take proportionate and commercially reasonable measures to check the data processor’s compliance with this Agreement by performing an audit and/or inspection of the data processor either itself or by using a third-party auditor.

The data controller shall give the data processor reasonable prior notice of an audit, conduct the audit during normal business hours, and take all reasonable measures to prevent unnecessary disruption to the data processor’s operations. Any such audit shall be subject to the data controller, or any third party retained by the data controller to perform such audit, entering into a non-disclosure agreement and may only be performed once annually.

C.6. Procedures for audits, including inspections, of the processing of personal data being performed by sub-processors

The data processor or the data processor’s representative shall have access to auditing and inspecting the processing at a sub-processor’s facilities when the data processor (or the data controller) deems that this is required. Documentation for such inspections shall without delay be submitted to the data controller for information.

Appendix D The parties’ terms of agreement on other subjects

Limitation on liability

In accordance with Article 82 (2) GDPR the data processor shall only be liable for any loss or damage caused by processing where it has not complied with its obligations under GDPR or where it has acted outside or contrary to lawful instructions of the data controller. Furthermore, the data processor shall be exempt from liability if it is not in any way responsible for the event giving rise to the loss or damage.

The total liability of the data processor for any loss or damage resulting from claims, demands or actions arising out of or in connection with this Agreement shall be limited to an amount equal to the sum of the fee(s) paid by the data controller to the data processor in the 12 months prior to the date the data controller first makes a claim against the data processor.

Last modified

This was modified on 09-04-2024