Data processing agreement

2. Preamble

2.1. These Contractual Clauses (the Clauses) set out the rights and obligations of the data controller and the data processor, when processing personal data on behalf of the data controller.

2.2. The Clauses have been designed to ensure the parties' compliance with Article 28(3) of Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

2.3. In the context of the provision of the Almanary app, 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 State data protection provisions and the Clauses.

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

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

4. The data processor acts according to instructions

4.1. The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or Member State law to which the processor is subject. Such instructions shall be specified in appendices A and C. Subsequent instructions can also be given by the data controller throughout the duration of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically, in connection with the Clauses.

4.2. The data processor shall immediately inform the data controller if instructions given by the data controller, in the opinion of the data processor, contravene the GDPR or the applicable EU or Member State data protection provisions.

5. Confidentiality

5.1. The data processor shall only grant access to the personal data being processed on behalf of the data controller to persons under the data processor's authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need to know basis. The list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.

5.2. The data processor shall at the request of the data controller demonstrate that the concerned persons under the data processor's authority are subject to the abovementioned confidentiality.

6. Security of processing

6.1. Article 32 GDPR stipulates that, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the data controller and data processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.

The data controller shall evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. Depending on their relevance, the measures may include the following:

• 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 the 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 technical and organisational measures for ensuring the security of the processing.

6.2. According to Article 32 GDPR, the data processor shall also, independently from the data controller, evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. To this effect, the data controller shall provide the data processor with all information necessary to identify and evaluate such risks.

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

If subsequently, in the assessment of the data controller, mitigation of the identified risks require further measures to be implemented by the data processor, than those already implemented by the data processor pursuant to Article 32 GDPR, the data controller shall specify these additional measures to be implemented in Appendix C.

7. Use of sub-processors

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

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

7.3. The data processor has the data controller's general authorisation for the engagement of sub-processors. The data processor shall inform in writing the data controller of any intended changes concerning the addition or replacement of sub-processors at least 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.

7.4. Where the data processor engages a sub-processor for carrying out specific processing activities on behalf of the data controller, the same data protection obligations as set out in the Clauses shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Clauses and the GDPR.

The data processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the data processor is subject pursuant to the Clauses and the GDPR.

7.5. A copy of such a sub-processor agreement and subsequent amendments shall, at the data controller's request, be submitted to the data controller, thereby giving the data controller the opportunity to ensure that the same data protection obligations as set out in the Clauses are imposed on the sub-processor. Clauses on business related issues that do not affect the legal data protection content of the sub-processor agreement, shall not require submission to the data controller.

7.6. 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:

• a. transfer personal data to a data controller or a data processor in a third country or in an international organization
• b. transfer the processing of personal data to a sub-processor in a third country
• c. have the personal data processed in by the data processor in a third country

8.4. The data controller's instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR on which they are based, shall be set out in Appendix C.6.

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

9. Assistance to the data controller

9.1. Taking into account the nature of the processing, the data processor shall assist the data controller by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the data controller's obligations to respond to requests for exercising the data subject's rights laid down in Chapter III GDPR.

This entails that the data processor shall, insofar as this is possible, assist the data controller in the data controller's compliance with:

• a. the right to be informed when collecting personal data from the data subject
• b. the right to be informed when personal data have not been obtained from the data subject
• c. the right of access by the data subject
• d. the right to rectification
• e. the right to erasure ('the right to be forgotten')
• f. the right to restriction of processing
• g. notification obligation regarding rectification or erasure of personal data or restriction of processing
• h. the right to data portability
• i. the right to object
• j. the right not to be subject to a decision based solely on automated processing, including profiling

9.2. In addition to the data processor's obligation to assist the data controller pursuant to Clause 6.3., the data processor shall furthermore, taking into account the nature of the processing and the information available to the data processor, assist the data controller in ensuring compliance with:

• a. 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, the supervisory authority competent for the data controller under Article 55 GDPR, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons;
• b. 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;
• c. 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);
• d. the data controller's obligation to consult the competent supervisory authority, the supervisory authority competent for the data controller under Article 55 GDPR, prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the data controller to mitigate the risk.

9.3. The parties shall define in Appendix C the appropriate technical and organisational measures by which the data processor is required to assist the data controller as well as the scope and the extent of the assistance required. This applies to the obligations foreseen in Clause 9.1. and 9.2.

10. Notification of personal data breach

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

10.2. The data processor's notification to the data controller shall, if possible, take place within 72 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:

• a. The nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
• b. the likely consequences of the personal data breach;
• c. the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

10.4. The parties shall define in Appendix C all the elements to be provided by the data processor when assisting the data controller in the notification of a personal data breach to the competent supervisory authority.

11. Erasure and return of data

11.1. On termination of the provision of personal data processing services, the data processor shall be under obligation to delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so, unless Union or Member State law requires storage of the personal data.

12. Audit and inspection

12.1. The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 and the Clauses and allow for and contribute to audits, including inspections, conducted by the data controller or another auditor mandated by the data controller.

12.2. Procedures applicable to the data controller's audits, including inspections, of the data processor and sub-processors are specified in appendices C.7. and C.8.

12.3. The data processor shall be required to provide the supervisory authorities, which pursuant to applicable legislation have access to the data controller's and data processor's facilities, or representatives acting on behalf of such supervisory authorities, with access to the data processor's physical facilities on presentation of appropriate identification.

13. The parties' agreement on other terms

13.1. The parties may agree other clauses concerning the provision of the personal data processing service specifying e.g. liability, as long as they do not contradict directly or indirectly the Clauses or prejudice the fundamental rights or freedoms of the data subject and the protection afforded by the GDPR.

14. Commencement and termination

14.1. The Clauses shall become effective on the date the data controller installs the Almanary app on its Shopify store. Installing the app is the data controller's acceptance of the Clauses; the app links the Clauses in its footer.

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.

15. Data controller and data processor contacts/contact points

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

For the data controller: the email address of its Shopify store as Shopify provides it to the data processor.

For the data processor: Almanary ApS, support@almanary.com.

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 let the data controller test a draft discount against its store's past orders before it goes live, and to show the data controller what a discount did.

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):

reading order data from the data controller's Shopify store through Shopify's Admin API; replaying it in memory against a draft discount; storing the resulting report together with a small set of example order rows; and erasing that data as set out in Appendix C.4. The processing includes hosting, backup and access control for those records.

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

order data that Shopify links to a customer: the order's identifier and display name, its date, currency, line items, prices and subtotal; the customer attributes a discount can condition on, namely the tags the store has assigned to the customer, the customer's order count, whether the customer was logged in, and the customer's country code; and, for the example order rows a run keeps, the discount amount computed for the order, whether a shipping discount applied and the report section the order illustrates. The processing does not include customer names, email addresses, phone numbers, street addresses or payment details; the data processor has not requested those fields from Shopify and Shopify returns them empty. The processing does not include data about the data controller's staff; the data processor's own records of staff use are described in its privacy policy.

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

the customers of the data controller's Shopify store.

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:

for as long as the Almanary app is installed on the data controller's store, and thereafter only until the erasure set out in Appendix C.4 is complete.

Appendix B. Authorised sub-processors

B.1. Approved sub-processors

On commencement of the Clauses, the data controller authorises the engagement of the sub-processors listed at almanary.com/subprocessors as processing the data controller's store data, for the processing described there for each of them, as that list stands on the date the Clauses commence. The list carries the date of its last change, and every change is notified under Appendix B.2 before it takes effect.

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

The data processor gives notice of a new or replacement sub-processor, or of a change of the country or region in which the data controller's store data is processed, at least 14 days before it takes effect, by email to the data controller's contact point, and adds it to the list at that address. If the data controller objects, it may end the provision of the service before the change takes effect by uninstalling the app; its personal data is then erased under Appendix C.4 and is not transferred to the new sub-processor.

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 processing described in Appendix A, as far as it is necessary to provide the Almanary app to the data controller in accordance with the terms of service, and nothing else.

C.2. Security of processing

The level of security shall take into account:

that the processing concerns order data linked to customers but excludes their names, contact details, addresses and payment details, and no data of the special categories in Article 9 GDPR; an ordinary level of security is therefore appropriate.

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:

• a. the credentials Shopify issues for the data controller's store are encrypted at rest;
• b. each store's data is isolated from every other store's;
• c. every connection carrying personal data is encrypted in transit;
• d. access to the systems that hold personal data is limited to the persons who operate the service and is granted on a need to know basis;
• f. the measures are reviewed at least once a year.

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:

on a customers/data_request from Shopify, the data processor sends the data controller, at its contact point in Clause 15, the personal data it holds about the customer and the orders named in the request; on a customers/redact or shop/redact from Shopify it erases the records named; in each case within the 30 days Shopify allows. For anything Shopify does not forward, the data processor answers the data controller's written request at the contact point within ten business days. A request a data subject sends directly to the data processor is forwarded to the data controller's contact point within five business days and is not answered by the data processor. For a data protection impact assessment or a prior consultation, the data processor provides on request the information in Appendix A and C.2 and the certifications its sub-processors publish. For a personal data breach the data processor provides the information in Clause 10.3 by email to the data controller's contact point.

C.4. Storage period/erasure procedures

Full order data is read for a test run, replayed in memory and not stored. A test run's report and its example order rows are erased when the run is deleted, when the discount they belong to is deleted, and on a customer erasure request forwarded by Shopify. When the app is uninstalled, the data processor erases all personal data processed on behalf of the data controller on receipt of Shopify's store erasure request, which Shopify sends 48 hours after uninstall, and in any event within 30 days of uninstall; the data controller's own configuration and reports stay retrievable for 30 days after uninstall, as the terms of service say, then are erased. The data processor keeps a record of each erasure, which holds no personal data of the data controller's customers, and certifies erasure to the data controller on request at the contact point in Clause 15.

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

C.5. Processing location

Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controller's prior written authorisation:

the data processor's own premises in Denmark, and, for each sub-processor listed at almanary.com/subprocessors as processing the data controller's store data, the country or region stated there for it. A change of that country or region is notified under Appendix B.2.

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

The data controller instructs the data processor that personal data may be transferred to a third country only through a sub-processor authorised under Appendix B, and only on an adequacy decision of the European Commission that covers that sub-processor or, failing one, on the standard contractual clauses adopted by the European Commission under Article 46(2)(c) GDPR, a copy of which the data processor provides on request at the contact point in Clause 15. This instruction covers the sub-processors listed at almanary.com/subprocessors on commencement and any addition notified under Appendix B.2 to which the data controller has not objected.

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 makes available to the data controller, on request at the contact point in Clause 15, the information necessary to demonstrate compliance with the Clauses, including a written description of the measures in C.2, the record of erasures relevant to the data controller, and the audit reports or certifications its sub-processors publish.

Where the data controller reasonably finds that information insufficient to demonstrate compliance, the data controller or an auditor mandated by the data controller may inspect the data processor's processing, at most once in any twelve months and again where a personal data breach affecting the data controller's data gives cause, on at least 30 days' written notice, remotely by default and on site where the data controller reasonably finds that a remote inspection cannot serve the purpose, during business hours, and without access to other controllers' data. The data controller may contest the scope, methodology or results and request a new inspection under a revised scope. The data controller's costs relating to an inspection shall be defrayed by the data controller. The data processor shall be under obligation to set aside the resources (mainly time) required for the data controller to be able to perform the inspection.

Based on the results of such an inspection, 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.

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 through the audit reports and certifications they publish and through the data protection terms it holds with each of them, and reviews them at least once a year. Documentation for that review is submitted to the data controller for information on request. Where a sub-processor provides its services on standard terms that the data processor cannot vary, those terms govern the audit and inspection of that sub-processor, and the data processor provides them to the data controller on request. If the data controller deems that the data processor's supervision has not provided sufficient documentation, it may elect to initiate and participate in an audit of the sub-processor within the audit terms that sub-processor offers; the data processor's responsibility for the sub-processor is unchanged. The data controller may contest the scope or methodology of the documentation and request a new review.

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

D.1. Under Clause 13.1 the parties agree that their liability to each other arising out of or relating to the Clauses or the processing they govern, including any claim between them for recourse or contribution in respect of compensation paid to a data subject, is governed by clause 9 of the terms of service at almanary.com/terms, to the extent the law allows. Clause 7.6 attributes a sub-processor's failure to the data processor; it does not enlarge the amount for which the data processor is liable. Nothing in this Appendix limits the rights of data subjects under the GDPR, including Article 82.

D.2. Clause 13 of the terms of service does not apply to the Clauses. A change to the Clauses is notified to the data controller's contact point, by email, at least 14 days before it takes effect, with the new text. Continuing to use the app after that date is acceptance; the data controller may instead end the service by uninstalling before then. Every version of the Clauses stays available with its effective date.

D.3. If the data controller maintains an instruction the data processor has flagged under Clause 4.2, the data processor may suspend that instruction until the data controller confirms, amends or withdraws it.