Data processing agreement

Standard Contractual Clauses

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

between

The customer that has created an account with Consentaur, identified by the company name and e-mail address registered in the account and by the billing details the customer has given when paying

(the data controller)

and

(the data processor)

each a ‘party’; together ‘the parties’

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.

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. Audit and inspection
• 13. The parties’ agreement on other terms
• 14. Commencement and termination
• 15. Data controller and data processor contacts/contact points
• 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

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 Consentaur, a cookie consent platform for websites, 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.

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 State¹ 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.

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.

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 30 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). 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.

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. Not included. This Clause is optional.

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:

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.

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:

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 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.

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:

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.

11.2. Not relevant. No EU or Member State law requires the data processor to store the personal data after the termination of the provision of personal data processing services.

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’ signature.

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.

14.5. Signature

15. Data controller and data processor contacts/contact points

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

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

Appendix A Information about the processing

A.1. The purpose of the data processor’s processing of personal data on behalf of the data controller is:

To provide Consentaurto the data controller: a cookie consent platform in which a banner script on the data controller's websites asks visitors for consent to cookies, blocks scripts until consent has been given, and records the visitors' choices, so that the data controller can document the consents given (consent records).

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):

Receiving visitors' consent choices from the banner script on the data controller's websites; storing the choices as consent records; showing consent records and statistics on the choices to the data controller in the dashboard; and erasure. The banner script also stores the visitor's choice on the visitor's own device, as described in A.3.

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

For each consent decision, the following is stored:

• a random consent ID, generated in the visitor's browser and kept in the visitor's consent cookie
• the choice per category: necessary (always on), analytics, marketing and preferences
• the action (accept all, reject all or customise) and the time
• the consent version, which identifies the banner and third-party vendor configuration the consent was given for
• the browser language (for example “de”)
• the device type (desktop, mobile or tablet), derived from the browser's user agent. The user agent itself is not stored.

No IP addresses, names or e-mail addresses are stored. The visitor's IP address passes through Cloudflare and the data processor's server in transit but is not stored by the data processor. Page views are counted per site per month as plain numbers, with no identifiers.

On the visitor's device, the banner script stores the cookie cookiebar_consent, with a lifetime of 365 days, and a copy in the browser's localStorage. It holds the choices, the consent ID, the consent version and the time. The banner asks again after 12 months, or when the site's cookie categories or third-party vendors change (a new consent version).

The cookie scanner visits the data controller's websites like a browser and records the names, domains, lifetimes and categories of the cookies it finds, but not the cookies' values.

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

Visitors to the data controller's websites on which Consentaur's banner script is installed.

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 lasts for as long as the data controller uses Consentaur. Storage periods and erasure are described in Appendix C.4.

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 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.

B.2. Prior notice for the authorisation of sub-processors

No longer notice periods have been agreed. Clause 7.3 applies to all sub-processors.

Appendix C Instruction pertaining to the use of personal data

C.1. The subject of/instruction for the processing

The data processor’s processing of personal data on behalf of the data controller shall be carried out by the data processor performing the following:

The data processor provides Consentaur as described in Appendix A, according to the settings the data controller chooses in the Consentaurdashboard. These settings form part of the data controller's documented instructions. They include which websites the banner is used on, and how the banner looks and is configured. The data processor's employees may access the personal data only when needed to operate, support and troubleshoot the service for the data controller. The data processor does not use the personal data for its own purposes and never sells it.

C.2. Security of processing

The level of security shall take into account:

The processing concerns consent records that are linked to a random consent ID and contain no names, e-mail addresses or IP addresses. They are ordinary personal data. The level of security is set accordingly, with particular focus on data minimisation, access control, encryption in transit and fixed storage periods.

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

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

Pseudonymisation and encryption.All connections between visitors, the banner script, the dashboard and the data processor's servers, and to the sub-processors, are encrypted with TLS. Backups are stored in Cloudflare R2 in the EU, which encrypts data at rest. Passwords for dashboard accounts are stored only as Argon2id hashes. Consent records are identified by a random consent ID and are not linked to identified visitors.

Confidentiality, integrity, availability and resilience.Access to data in the service is limited per account. On the Business plan, the account owner can invite team members, who get access to the account's sites; only the account owner can change the subscription and account settings. Only the data processor's employees who need it to operate and support the service have access to production systems, and they are bound by confidentiality. Administrative access to the servers requires SSH keys. Databases and internal services are not reachable from the internet.

Restoring availability and access. The database is backed up every night to separate storage (Cloudflare R2, EU), and backups are kept for 30 days. After a physical or technical incident, the data processor can restore the service and the data from backup.

Regular testing and evaluation.Changes are tested with the service's automated tests and type checks before they are deployed. At least once a year the data processor reviews its technical and organisational measures, access rights and sub-processors, and updates them as needed.

Access to data over the internet.The data controller's users access data through the dashboard over HTTPS, with login by e-mail and password or Google, and with login cookies that are httpOnly and Secure. The data processor's own administration requires a Google account in the data processor's domain.

Data in transmission. TLS as described above.

Data in storage.Personal data is stored in the data processor's database on servers at Contabo in the EU (Lauterbourg, France) and in backups in Cloudflare R2 in the EU. Consent records are erased automatically as described in C.4. Personal data is not stored on employees' computers, except temporarily when necessary for troubleshooting, after which it is deleted.

Physical security.The servers are in Contabo's data centre, where Contabo is responsible for physical access control. The data processor does not keep servers or personal data on paper at its own premises.

Home and remote working. Work is done from the office and from home on computers with disk encryption, screen lock and updated operating systems. Production systems are accessed only through encrypted connections.

C.3. Assistance to the data controller

The data processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the following technical and organisational measures:

The data processor assists the data controller with requests from data subjects and with the obligations in Clause 9.2, to the extent the information is available to the data processor. The data controller can see the consent records for its sites in the dashboard (on the Growth and Business plans) and delete a site with all its data. As the records contain no names, e-mail addresses or IP addresses, a particular visitor's records can only be found from the consent ID in the visitor's consent cookie. On request by e-mail to support@consentaur.com, the data processor finds the records for a given consent ID and extracts or erases them, normally within 7 days.

When notifying a personal data breach under Clause 10, the data processor provides, as far as available: what happened and when; which sites and time period are affected; the types of personal data and the approximate number of consent records affected; the likely consequences; the measures taken or proposed; and a contact person.

C.4. Storage period/erasure procedures

Consent records are erased automatically 24 months after they are recorded. When the data controller deletes a site, the site's consent records, cookie scans, cookie list, statistics and published banner script are erased immediately. When the data controller deletes its account, all the account's sites and their data are erased in the same way. Backups are kept for 30 days, so erased data disappears from backups no later than 30 days after.

Upon termination of the provision of personal data processing services, the data processor shall either delete or return 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.

The service ends when the data controller deletes its Consentaur account. The personal data is then erased immediately, and from backups no later than 30 days after. On request to support@consentaur.com, the data processor confirms the erasure in writing. If the data controller cancels a paid subscription, the account continues on the Free plan and the Clauses apply until the account is deleted.

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:

• Uneven Bits ApS, Dybbølsgade 39, 2. th., 1721 København V, Denmark, and its employees' homes (remote work): the data processor, for operation, support and development through encrypted connections.
• Contabo's data centre in Lauterbourg, France: Contabo GmbH (servers and database).
• The sub-processors in Appendix B, at the locations stated there.

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

The data controller instructs the data processor to transfer personal data to the USA, and to other third countries where Cloudflare processes data under its data processing agreement, to the extent necessary to use Cloudflare for network delivery and security of the traffic to the service and for delivery of the banner script.

• Cloudflare, Inc.: the European Commission's adequacy decision for the EU-US Data Privacy Framework (Article 45 GDPR), and otherwise the standard contractual clauses in Cloudflare's data processing agreement.

If the data controller does not in the Clauses or subsequently provide documented instructions pertaining to the transfer of personal data to a third country, the data processor shall not be entitled within the framework of the Clauses to perform such transfer.

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

The data processor shall once a year, at the data controller's request and at the data processor's expense, provide a written statement on its compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses, including an updated description of the technical and organisational measures and of the sub-processors. The data controller may contest the scope and/or methodology of the statement and may in such cases request further documentation.

The data controller or an auditor mandated by the data controller and bound by confidentiality may in addition inspect, including physically inspect, the places where the processing of personal data is carried out by the data processor, including systems used for and related to the processing, when the data controller deems it required. Inspections shall be announced in writing at least 30 days in advance, unless there is a specific reason for a shorter notice, such as a personal data breach.

The data controller’s costs, if applicable, relating to physical inspection shall be defrayed by the data controller. The data processor shall, however, be under obligation to set aside the resources (mainly time) required for the data controller to be able to perform the inspection.

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

The data processor supervises its sub-processors by reviewing, at least once a year, their data processing agreements and the documentation they publish on their security and compliance, such as certifications and independent audit reports, where available. As the sub-processors are providers of standardised cloud services, the supervision is based on this documentation rather than physical inspections. Documentation for the supervision shall on request be submitted to the data controller for information.

Appendix D The parties’ terms of agreement on other subjects

D.1. Acceptance. The Clauses form part of Consentaur's terms and conditions and are accepted electronically when the data controller creates an account with Consentaur or accepts updated terms. Electronic acceptance takes the place of the signatures in Clauses 14.1 and 14.5. On request, the data processor provides a copy signed by both parties.

D.2. Unlawful instructions (Clause 4.2). If the data processor considers that an instruction contravenes the GDPR or other data protection provisions, the data processor may suspend the part of the processing covered by the instruction until the data controller has confirmed, changed or withdrawn it. If the parties cannot agree, either party may terminate the service with immediate effect.

D.3. Objection to sub-processors (Clause 7.3). If the data controller objects to an added or replaced sub-processor on reasonable grounds relating to data protection and the parties cannot find a solution, the data controller may terminate the subscription before the change takes effect. The data processor then refunds any amount paid for the period after termination.

D.4. Assistance. Assistance under Clauses 9 and 10 and Appendix C.3 and C.7 is provided free of charge to a reasonable extent. If the data controller requests assistance beyond that, the data processor may charge for its time at its hourly rate at the time, after agreeing it with the data controller in advance.

D.5. Changes. The data processor may update Appendix C to reflect changes in the service or its security measures, provided the level of protection is not reduced, and informs the data controller by e-mail of material changes. Changes to sub-processors follow Clause 7.3.

D.6. Liability. Liability between the parties follows Consentaur's terms and conditions. This does not limit the data subjects' rights under the GDPR, including Articles 79 and 82.

D.7. Notices and law. Notices under the Clauses are sent by e-mail, to the data controller at the e-mail address of the account owner and to the data processor at support@consentaur.com. The Clauses are governed by Danish law, and disputes are settled as set out in Consentaur's terms and conditions.