Data Processing Agreement (DPA)
DORAedge platform Data Processing Agreement
Last updated December 9, 2024
Data processing agreement (Addendum for customers who have an active customer relationship with Performativ ApS)
For the purposes of Article 28(3) of Regulation 2016/679 (the GDPR)
Between
The customer named in the Software Subscription Agreement
(The data controller)
and
Performativ ApS CVR 41540001 Kronprinsensgade 2, 2 1114 København K Denmark
(The data processor)
each a ‘party’; together ‘the parties’
HAVE AGREED on the following Clauses in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.
Table of Contents
Introduction
The rights and obligations of the data controller
The data processor acts according to instructions
Confidentiality
Security of processing
Use of sub-processors
Transfer of data to third countries or international obligations
Assistance to the data controller
Notification of personal data breach
Erasure and return of data
Audit and inspection
The parties' agreement on other terms
Commencement and termination
Appendix A - Information about the processing
Appendix B - Authorised sub-processors
Appendix C - Instruction pertaining to the use of personal data
1. Introduction
These Contractual Clauses (the Clauses) set out the rights and obligations of the data controller and Performativ, when processing personal data on behalf of the data controller in operating DORAedge.
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).
In the context of the provision of Performativ, Performativ will process personal data on behalf of the data controller in accordance with the Clauses.
The Clauses shall take priority over any similar provisions contained in other agreements between the parties.
Three appendices are attached to the Clauses and form an integral part of the Clauses.
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.
Appendix B contains the data controller’s conditions for Performativ’s use of sub-processors and a list of sub-processors authorised by the data controller.
Appendix C contains the data controller’s instructions with regards to the processing of personal data, the minimum-security measures to be implemented by Performativ and how audits of Performativ and any sub-processors are to be performed.
The Clauses along with appendices shall be retained in writing, including electronically, by both parties.
The Clauses shall not exempt Performativ from obligations to which Performativ is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.
2. The rights and obligations of the data controller
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.
The data controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
The data controller shall be responsible, among other, for ensuring that the processing of personal data, which Performativ is instructed to perform, has a legal basis.
3. The data processor acts according to instuctions
Performativ 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.
Performativ shall immediately inform the data controller if instructions given by the data controller, in the opinion of Performativ, contravene the GDPR or the applicable EU or Member State data protection provisions.
4. Confidentiality
Performativ shall only grant access to the personal data being processed on behalf of the data controller to persons under Performativ’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 can at the request be reviewed. Based on 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.
Performativ shall at the request of the data controller demonstrate that the concerned persons under Performativ’s authority are subject to the abovementioned confidentiality.
5. Security of Process
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.
According to Article 32 GDPR, Performativ 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 Performativ with all information necessary to identify and evaluate such risks.
Furthermore, Performativ 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 Performativ 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.
6. Use of sub-processors
Performativ shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).
Performativ shall therefore not engage another processor (sub-processor) for the fulfilment of the Clauses without the prior general written authorisation of the data controller.
Performativ has the data controller’s general authorisation for the engagement of sub-processors. Performativ shall inform in writing the data controller 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). 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.
Where Performativ 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.
Performativ shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which Performativ is subject pursuant to the Clauses and the GDPR.
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.
Performativ shall agree a third-party beneficiary clause with the sub-processor where – in the event of bankruptcy of Performativ – 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 Performativ, e.g., enabling the data controller to instruct the sub-processor to delete or return the personal data.
If the sub-processor does not fulfil his data protection obligations, Performativ 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 Performativ, including the sub-processor.
7. Transfer of data to third countries or international organisations
Any transfer of personal data to third countries or international organisations by Performativ shall only occur on the basis of documented instructions from the data controller and shall always take place in compliance with Chapter V GDPR.
In case transfers to third countries or international organisations, which Performativ has not been instructed to perform by the data controller, is required under EU or Member State law to which Performativ is subject, Performativ shall inform the data controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
Without documented instructions from the data controller, Performativ 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 in a third country
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.
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.
8. Assistance to the data controller
Taking into account the nature of the processing, Performativ 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 Performativ 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
In addition to Performativ’s obligation to assist the data controller pursuant to Clause 6.3., Performativ shall furthermore, taking into account the nature of the processing and the information available to Performativ, 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, Datatilsynet, 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, Datatilsynet, 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.
The parties shall define in Appendix C the appropriate technical and organisational measures by which Performativ 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.
9. Notification of personal data breach
In case of any personal data breach, Performativ shall, without undue delay after having become aware of it, notify the data controller of the personal data breach.
Performativ’s notification to the data controller shall, if possible, take place within 24 hours after Performativ 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.
In accordance with Clause 9(2)(a), Performativ shall assist the data controller in notifying the personal data breach to the competent supervisory authority, meaning that Performativ 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.
The parties shall define in Appendix C all the elements to be provided by Performativ when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.
10. Erasure and return of data
On termination of the provision of personal data processing services, Performativ 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.
11. Audit and inspection
Performativ 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, regulator, or another auditor mandated by the data controller.
Procedures applicable to the data controller’s audits, including inspections, of Performativ and sub-processors are specified in appendices C.7.
Performativ 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 Performativ’s physical facilities on presentation of appropriate identification.
The parties’ agreement on other terms
12. The parties' agreement on other terms
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.
13. Commencement and termination
The Clauses shall become effective on the effective date of the subscription termination per the Terms & Conditions.
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.
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.
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.3., the Clauses may be terminated by written notice by either party.
Signature
On behalf of the data processor
Name Albert Geisler Fox
Position CEO
Signature [Electronically]
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:
The purpose of this data processing agreement is to ensure the parties' compliance with applicable data protection legislation and to document the data controller's instructions to Performativ.
The purpose of Performativ’s processing of personal data on behalf of the data controller is to ensure the data controller and its customers' use of Performativ's tools for portfolio management as further specified in the Software Subscription Agreement between Performativ and data controller; in addition, deliver data to the data controller's own or external systems, where the data controller is responsible for the security of the data.
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):
Description, continuous valuations, and administration of the data controller's end customer investment portfolios.
A.3. The processing includes the following types of personal data about data subjects:
Name, e-mail address, telephone number, address, national identification number, bank and custody account number, customer number, capital market transactions entered through customer relations in Danish or foreign banks, capital market transactions entered into outside of customer relations with banks.
A.4. Processing includes the following categories of data subject:
The data controller’s end users;
The data controller’s customers and the customer’s end users;
The data controller’s end users’/ customers’/customers’ end users' employees;
The data controller’s end users / customers’ / customers’ end users’ authorized holders;
Employees of the data controller
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:
Until the customer relationship between data processor and the data controller is terminated
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:
Name
Address
Description of Processing
Amazon Web Services EMEA SARL
38 Avenue John F. Kennedy, L-1855, Luxembourg
Data hosting. Data is stored exclusively in data centres in Germany & Sweden
Auth0., Inc
280 Bishopsgate, London, United Kingdom, EC2M 4AG
User management. Data is stored exclusively in data centres in Germany
Stripe Payments Europe Limited
3 Dublin Landings,
North Wall Quay,
Dublin 1, Dublin, Ireland
Payment processing and authorization and settlement of transactions. Data is stored in data centres in Ireland and the Netherlands
OpenAI Ireland Limited
1st Floor, The Liffey Trust Centre, 117-126 Sheriff Street Upper, Dublin 1, Dublin 1
AI services including natural language processing. Data is stored in data centres in Ireland
HubSpot, Inc.
199 Bishopsgate, London EC2M 3T
Customer relationship management and marketing automation. Data is stored in Germany
Encharge Limited
Cherkovna 57, Office 19, Sofia, Bulgaria, 1505
Marketing automation. Data is stored in the United States
Appendix C — Instruction pertaining to the use of personal data
C.1. The subject of/instruction for the processing
Performativ’s processing of personal data on behalf of the data controller shall be carried out by Performativ performing the following:
Signing the customer relationship’s software subscription agreement
The data controller enters customers client information into the system
The data controller or one of his/her users (internal/external) uses the system’s functions.
C.2. Security of processing
The level of security shall take into account:
A high level of security is maintained. It should be taken into account that Performativ neither store nor process the data subject to Article 9 GDPR.
Performativ 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.
Performativ shall however – in any event and at a minimum – implement the following measures that have been agreed with the data controller:
Anonymize usage data used for usage statistics or error handling: however, exempted when processing usage data for invoicing: The amount of personal data is limited to a minimum level;
Stores the controller’s data separately from other customers’ data;
Ensure a high quality and frequency of backups;
Protect and secure data during transmission from client to server;
Continually, ensure that there is sufficient physical security around servers where personal data is processed or stored;
C.3. Assistance to the data controller
Performativ shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with section 9 by implementing the following technical and organisational measures:
Performativ will, without undue delay, after becoming aware, notify the data controller in writing of any request addressed to Performativ or its sub-data processors from a data subject regarding the exercise of his rights in accordance with applicable data protection law. Performativ is not entitled to respond to requests from a data subject regarding the exercise of his rights according to applicable data protection law. Performativ will, at the request of the data controller, assist in fulfilling the data controller's obligations in relation to the rights of the data subjects in accordance with applicable data protection law.
Performativ’s assistance in relation to the data controller's obligations according to Articles 33 and 34 of the Data Protection Regulation are carried out by Performativ submitting the information resulting from section 9 to the data controller within the deadline from section 9. Performativ will subsequently assist the data controller by, at the data controller's request, provide the information available which is necessary for the data controller to report a breach of personal data security to Datatilsynet or which is necessary for the data controller to notify the data subject thereof
In case the data controller assesses that the processing is likely to entail a high risk for the rights and freedoms of the data subjects, Performativ will, at the request of the data controller, assist the data controller in accordance with his obligations under Articles 35 and 36 of the Data Protection Regulation by submitting the information to the data controller that is necessary for the data controller to carry out an impact analysis in accordance with Article 35 and to carry out a prior consultation with the relevant country Data Protection Authority in accordance with Article 36.
Performativ will finally ensure that its technical and organizational measures enable the data controller to comply with its obligations according to the nature of the data protection regulation. 33-36.
C.4. Storage period/erasure procedures
If the data controller has voiced a topic that has personal data associated with it, the data series will be anonymized within 3 months; hereafter deleted completely.
Upon termination of the provision of personal data processing services, Performativ shall 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. Instruction on the transfer of personal data to third countries
In relation to the operation, Performativ may have to transfer personal data for processing when found absolutely necessary for the continued operation.
C.6. Procedures for the data controller’s processing of personal data being performed by the data processor
Performativ will, at the request of the data controller – although no more than once a year - at its own expense make a statement regarding Performativ’s and its possible sub-processors' compliance with the data protection regulation, data protection regulations in other EU law or the national law of the member states and regulations with associated annexes.
If the data controller assesses that the submitted statement does not sufficiently demonstrate the compliance of Performativ and its possible sub-processors with the data protection regulation, data protection regulations in other EU law of the member states and the Regulations with associated annexes, Performativ will, at the request of the data controller and expense obtain an audit statement from an independent accountant concerning Performativ and its potential sub processors’ compliance with the GDPR, the applicable EU or Member State data protection provisions and the provisions with associated annexes. If Performativ is requested to provide an audit statement in accordance with this point, this will be prepared based on the following types of audit statements:
ISAE 3000, with assurance on description of controls aimed at data protection and processing of personal data.
Following further discussions with the data controller, the declaration can be adapted to the concrete relevant standard procedures for Performativ, just as the declaration can be submitted in accordance with another appropriate standard. If the data controller needs to ensure that other requirements are also met, the declaration can be enriched depending on the data controller’s individual needs.
The data controller or an independent auditor authorized by the data controller, also has the right to carry out inspections of Performativ’s physical facilities, where personal data is processed, and systems used and related to the processing of, as well as receive the necessary information for carrying out the investigation of whether Performativ has taken the security measures that follow from the regulations and applicable data protection law. This may, for instance, be the case if a specific circumstance, e.g., a security breach, gives rise to doubts about the protection of the personal data of Performativ. The data controller obtains a declaration of confidentiality from the independent auditor.
The data controller may contest the methodology for the conducted control measures and may in such cases request a new audit report and/or a new inspection under a revised scope and/or different methodology
Based on the results of such control measures, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the Clauses.
The data controller is entitled to pass on information received in accordance with the provisions in this appendix to the Danish Data Protection Authority, upon request from the Danish Data Protection Authority.
C.7. Procedures for audits, including inspections, of the processing of personal data being performed by sub-processors
As a starting point, Performativ determines how the audit of the sub-processor’s compliance with the data protection regulation, data protection provisions in the applicable EU or Member State data protection provisions and how the sub-data processor agreement is carried out, including specifying the type of audit statement and/or inspection report to be obtained.
The type and extent of the audit will reflect the nature of the processing of personal data carried out by the sub-processor.
Any audit statements and / or inspection reports regarding sub-processors’ processing of personal data covered by the provisions shall without undue delay be submitted to the data controller for information.
The data controller may contest the scope for the undertaken control measures and may in such cases request a new audit report and / or a new inspection under a revised scope and/or different methodology.
Based on the results of the control measures, the data controller may request further measures to be taken to ensure compliance with the GDPR, the applicable EU or Member State data protection provisions and the data processing agreement.
Performativ or Performativ’s representative shall in addition have access to inspect, including physically inspect, the places, where the processing of personal data is carried out by the sub-processors, including physical facilities as well as systems used for and related to the processing. Such an inspection shall be performed, when Performativ (or the data controller) deems it required.
Any expenses incurred by Performativ and the sub-processor in connection with carrying out a physical inspection/inspection at the sub-data processor are not the responsibility of the data controller - regardless of the fact that the data controller has initiated and possibly participated in such an inspection.
However, Performativ is obliged to allocate the resources (mainly the time) necessary for the data controller to carry out his inspections
The data controller’s participation in an inspection of the sub-processor shall not alter the fact that Performativ hereafter continues to bear the full responsibility for the sub-processor’s compliance with the GDPR, the applicable EU or Member State data protection provisions.
Last updated