Semantic Data Processing Agreement

Standard Contractual Clauses for the purposes of Article 28(3) of Regulation (EU) 2016/679 (GDPR)

Parties

The data controller: the Customer holding an Agreement with Semantic (as defined in Semantic’s Terms of Service), identified by its company registration number in the Semantic Portal.

The data processor: Semantic ApS, CVR 43789406, Venlighedsvej 1, 2970 Hørsholm, Denmark (“Semantic”).

Each a “party”, together “the parties”. The parties have agreed on the following Contractual Clauses (“Clauses”) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subjects. The Clauses are based on the standard contractual clauses published by the Danish Data Protection Agency (Datatilsynet).

Table of contents

1. Preamble
2. The rights and obligations of the data controller
3. The data processor acts according to instructions
4. Confidentiality
5. Security of processing
6. Use of sub-processors
7. Transfer of data to third countries or international organisations
8. Assistance to the data controller
9. Notification of personal data breach
10. Erasure and return of data
11. Audit and inspection
12. The parties’ agreement on other terms
13. Commencement and termination
14. Data controller and data processor contacts

• Appendix A – Information about the processing
• Appendix B – Authorised sub-processors
• Appendix C – Instructions pertaining to the use of personal data
• Appendix D – The parties’ terms of agreement on other subjects

1. Preamble

1.1 These Clauses set out the rights and obligations of the data controller and the data processor when processing personal data on behalf of the data controller.

1.2 The Clauses have been designed to ensure the parties’ compliance with Article 28(3) GDPR.

1.3 In the context of the provision of the Semantic platform, including the Semantic API, Portal and Peppol Access Point and SMP services (the “Service”), the data processor will process personal data on behalf of the data controller in accordance with the Clauses.

1.4 The Clauses shall take priority over any similar provisions contained in other agreements between the parties, including the Terms of Service and the API License Agreement.

1.5 Four appendices are attached to the Clauses and form an integral part of the Clauses. Appendix A contains details about the processing. Appendix B contains the conditions for the use of sub-processors and a list of authorised sub-processors. Appendix C contains the data controller’s instructions, the minimum security measures and how audits are performed. Appendix D contains provisions for other activities not covered by the Clauses.

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

1.7 The Clauses shall not exempt the data processor from obligations to which it is subject pursuant to the GDPR or other legislation.

2. The rights and obligations of the data controller

2.1 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.

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

2.3 The data controller shall be responsible, among other things, for ensuring that the processing of personal data which the data processor is instructed to perform has a legal basis.

3. The data processor acts according to instructions

3.1 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 are specified in Appendices A and C. The data controller’s configuration and use of the Service (including choice of recipients and document types) constitute documented instructions. Subsequent instructions shall be documented in writing, including electronically.

3.2 The data processor shall immediately inform the data controller if instructions, in the opinion of the data processor, contravene the GDPR or the applicable EU or Member State data protection provisions. The data processor may suspend execution of such instructions until the data controller has confirmed or amended them.

3.3 The data processor does not process personal data processed on behalf of the data controller for its own purposes. Section 7.2 of the Terms of Service concerning anonymised technical and usage data does not permit the use of personal data.

4. Confidentiality

4.1 The data processor shall only grant access to the personal data to persons under its 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 with access shall be kept under periodic review, and access shall be withdrawn when no longer necessary.

4.2 The data processor shall at the request of the data controller demonstrate that the persons concerned are subject to such confidentiality.

5. Security of processing

5.1 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 inherent in the processing and implement measures to mitigate those risks, which may include: (a) pseudonymisation and encryption of personal data; (b) the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore availability and access to personal data in a timely manner in the event of a physical or technical incident; (d) a process for regularly testing, assessing and evaluating the effectiveness of the measures.

5.2 According to Article 32 GDPR, the data processor shall also, independently of the data controller, evaluate the risks and implement measures to mitigate them. The data controller shall provide the data processor with all information necessary to identify and evaluate such risks.

5.3 The data processor shall assist the data controller in ensuring compliance with its obligations under Article 32 GDPR, inter alia by providing information on the technical and organisational measures already implemented (Appendix C.2). If further measures are required in the data controller’s assessment, these shall be specified in Appendix C.

6. Use of sub-processors

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

6.2 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 one month in advance, thereby giving the data controller the opportunity to object. If the data controller objects on reasonable data protection grounds and the parties cannot agree on a solution, the data controller may terminate the Agreement with respect to the affected Service without any penalty. The list of authorised sub-processors is in Appendix B.

6.3 Where the data processor engages a sub-processor, 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.

6.4 A copy of the sub-processor agreement and subsequent amendments shall, at the data controller’s request, be submitted to the data controller. Clauses on business-related issues that do not affect the data protection content may be redacted.

6.5 If the sub-processor does not fulfil its 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 data subjects under the GDPR, in particular Articles 79 and 82 GDPR.

6.6 Peppol network. Other Peppol Service Providers (access points) chosen by the recipient, and the OpenPeppol network infrastructure, receive documents because the data controller instructs the data processor to deliver them to a given recipient. They act on behalf of the recipient or independently and are not sub-processors of the data processor.

7. Transfer of data to third countries or international organisations

7.1 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.

7.2 In case transfers which the data processor has not been instructed to perform are 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.

7.3 Without documented instructions from the data controller, the data processor therefore cannot within the framework of the Clauses: (a) transfer personal data to a data controller or data processor in a third country or international organisation; (b) transfer the processing of personal data to a sub-processor in a third country; (c) have the personal data processed by the data processor in a third country.

7.4 The data controller’s instructions regarding transfers, including the transfer tool under Chapter V GDPR, are set out in Appendix C.6.

7.5 The Clauses shall not be confused with standard data protection clauses within the meaning of Article 46(2)(c) and (d) GDPR and cannot be relied upon as a transfer tool under Chapter V GDPR.

8. Assistance to the data controller

8.1 Taking into account the nature of the processing, the data processor shall assist the data controller by appropriate technical and organisational measures, insofar as possible, in fulfilling the data controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR, including the rights to information, access, rectification, erasure, restriction, notification, data portability, objection and the right not to be subject to automated individual decision-making. Requests received directly by the data processor shall be forwarded to the data controller without undue delay.

8.2 In addition to the assistance under Clause 5.3, the data processor shall, taking into account the nature of the processing and the information available to it, assist the data controller in ensuring compliance with:

• (a) the obligation to notify a personal data breach to the competent supervisory authority, Datatilsynet, without undue delay and, where feasible, not later than 72 hours after having become aware of it, unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons;
• (b) the obligation to communicate a personal data breach to the data subjects without undue delay when the breach is likely to result in a high risk;
• (c) the obligation to carry out a data protection impact assessment;
• (d) the obligation to consult Datatilsynet prior to processing where a data protection impact assessment indicates a high risk in the absence of mitigating measures.

8.3 The parties define in Appendix C the technical and organisational measures by which the data processor assists the data controller and the scope of the assistance required.

9. Notification of personal data breach

9.1 In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the data controller.

9.2 The notification shall, if possible, take place within 24 hours after the data processor has become aware of the breach, to enable the data controller to comply with Article 33 GDPR.

9.3 In accordance with Clause 8.2(a), the data processor shall assist the data controller in obtaining the information which, pursuant to Article 33(3) GDPR, shall be stated in the notification to the supervisory authority: (a) the nature of the breach, including where possible the categories and approximate number of data subjects and records concerned; (b) the likely consequences; (c) the measures taken or proposed to address the breach, including measures to mitigate its possible adverse effects.

9.4 The elements to be provided by the data processor are further defined in Appendix C.

10. Erasure and return of data

10.1 On termination of the provision of personal data processing services, the data processor shall, at the choice of the data controller, delete or return all personal data processed on behalf of the data controller and delete existing copies, and certify to the data controller that it has done so, unless Union or Member State law requires storage of the personal data. Return and export take place in accordance with section 10 of the Terms of Service and Appendix C.4.

11. Audit and inspection

11.1 The data processor shall make available to the data controller all information necessary to demonstrate compliance with Article 28 GDPR 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.

11.2 Procedures for the data controller’s audits of the data processor and sub-processors are specified in Appendices C.7 and C.8.

11.3 The data processor shall 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 their behalf, with access to the data processor’s physical facilities on presentation of appropriate identification.

12. The parties’ agreement on other terms

12.1 The parties may agree other clauses concerning the provision of the personal data processing service, 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. Such terms are set out in Appendix D.

13. Commencement and termination

13.1 The Clauses become effective when the data controller accepts them electronically in the Semantic Portal together with the Terms of Service, or when signed by both parties.

13.2 Both parties shall be entitled to require the Clauses renegotiated if changes to the law or inexpediency of the Clauses give rise to such renegotiation.

13.3 The Clauses apply for the duration of the provision of personal data processing services. For that duration the Clauses cannot be terminated unless other clauses governing the provision of personal data processing services have been agreed between the parties.

13.4 If the provision of personal data processing services is terminated and the personal data has been deleted or returned pursuant to Clause 10.1 and Appendix C.4, the Clauses may be terminated by written notice by either party.

13.5 Acceptance. The Clauses are accepted electronically on behalf of the data controller by its authorised representative in the Semantic Portal and on behalf of the data processor by Semantic ApS. The acceptance log (date, time, user, version) constitutes the signature of both parties. A countersigned copy can be requested at info@semantic.biz.

14. Data controller and data processor contacts

14.1 The parties may contact each other using the following contacts:

• Data controller: the administrator and privacy contact registered by the Customer in the Semantic Portal.
• Data processor: Semantic ApS, info@semantic.biz, +45 53 71 03 04. Responsible: Poul Andersen

14.2 The parties shall continuously inform each other of changes to contacts.

Appendix A – Information about the processing

A.1 Purpose. To send, receive, validate, convert, route and log electronic business documents via the Peppol network and the Semantic API on behalf of the data controller, and to provide related support.

A.2 Nature of the processing. Receipt, validation, transformation (e.g. format mapping), transmission, temporary storage, logging, retrieval and deletion of e-invoices, credit notes, orders, catalogues, logistics and transport documents (e.g. despatch advice, waybills, eFTI data sets) and related metadata, in accordance with the Peppol specifications; registration of participants in the SMP; support ticket handling.

A.3 Types of personal data. Personal data contained in business documents and metadata, typically: name, job title, business e-mail address, telephone number, business address, and identifiers of contact persons; in logistics documents also names of drivers, consignors’/consignees’ contact persons, vehicle registration numbers and signatures; user account data (name, e-mail, login and IP logs) of the data controller’s users. The Service is not intended for special categories of personal data (Article 9 GDPR) or data on criminal offences (Article 10 GDPR); the data controller shall not include such data in documents unless agreed separately.

A.4 Categories of data subjects. Employees and contact persons of the data controller; employees and contact persons of the data controller’s customers, suppliers, carriers and other trading partners; drivers and other persons named in logistics documents; sole traders whose name is part of a business identity; users of the Semantic Portal and API.

A.5 Duration. The processing may commence when the Clauses take effect and continues for the duration of the Agreement, plus the period necessary for switching, data retrieval and erasure under section 10 of the Terms of Service.

Appendix B – Authorised sub-processors

B.1 Approved sub-processors. On commencement of the Clauses, the data controller authorises the engagement of the following sub-processors:

The current list is always published in this Appendix B at semantic.biz/terms-and-conditions/data-processing-agreement.

B.2 Prior notice for authorisation of sub-processors. See Clause 6.2: at least one month’s prior written notice (e-mail to the registered privacy contact and publication of the updated list).

Appendix C – Instructions pertaining to the use of personal data

C.1 The subject of and instruction for the processing. The data processor’s processing on behalf of the data controller consists of the processing described in Appendix A.

C.2 Security of processing. The level of security shall take into account that the processing mainly concerns ordinary personal data in business documents in large volumes. The data processor shall as a minimum implement:

• encryption in transit (TLS 1.2 or higher; AS4 message-level signing and encryption in the Peppol network) and encryption at rest;
• role-based access control, least privilege, multi-factor authentication for administrative access and logging of administrative access;
• segregation of customer data (logical tenant separation);
• secure development practices, vulnerability management and regular patching;
• regular backup with tested restore procedures and documented business continuity plans;
• logging and monitoring of security events;
• regular (at least annual) review and testing of the effectiveness of the measures;
• confidentiality undertakings and security awareness training for staff;
• certifications/assurance: e.g. OpenPeppol Service Provider accreditation; ISO 27001 certification of the hosting provider (Microsoft Azure).

C.3 Assistance to the data controller. The data processor assists as set out in Clauses 8 and 9 via the Portal’s export and deletion functions and via support. Assistance beyond what the Portal provides may be invoiced at Semantic’s standard hourly rate, unless the need for assistance results from the data processor’s breach of the Clauses.

C.4 Storage period / erasure procedure. Documents, payloads, delivery receipts, transaction logs and metadata are archived for 3 months from the date of sending or receipt and then automatically deleted. Where the data controller has purchased extended archiving, the data is stored for the period stated in the Order and then automatically deleted. Upon termination, personal data is deleted after the data retrieval period under section 10.5 of the Terms of Service, unless the data controller has requested return, and deletion is confirmed in writing.

C.5 Processing location. Processing takes place at the data processor’s premises in Denmark and at the sub-processors’ locations stated in Appendix B, without prior written authorisation of other locations by the data controller.

C.6 Instruction on transfer of personal data to third countries. The data controller instructs the data processor (a) to use the sub-processors in Appendix B on the transfer tools stated there, and (b) to deliver documents to recipients and their Peppol Service Providers designated by the data controller, including recipients outside the EU/EEA; such delivery takes place at the data controller’s instruction and under its responsibility for the transfer basis. Other transfers require prior written instruction.

C.7 Procedures for the data controller’s audits of the processing. The data processor provides, once a year free of charge upon request, a written description of its technical and organisational measures and its latest self-assessment. The data controller or an independent auditor bound by confidentiality may conduct an inspection with 30 days’ notice, during normal business hours and without disproportionate disruption. The data controller bears its own costs; the data processor’s time is invoiced at standard rates unless the audit reveals material non-compliance.

C.8 Procedures for audits of sub-processors. The data processor reviews the sub-processors’ audit reports and certifications (e.g. ISO 27001, SOC 2) at least annually and makes a summary available to the data controller on request.

Appendix D – The parties’ terms of agreement on other subjects

D.1 Liability. The limitation of liability in section 14 of the Terms of Service also applies to the Clauses, except that it does not limit either party’s liability towards data subjects under Article 82 GDPR or fines imposed by supervisory authorities on the party responsible.

D.2 Remuneration. Processing under the Clauses is covered by the fees in the Agreement, unless otherwise stated in Appendix C.

D.3 Governing law. The Clauses are governed by Danish law. Disputes are settled in accordance with section 18 of the Terms of Service.

References to “Member States” in these Clauses shall be understood as references to EEA Member States.