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NUMBER 2 / ARTICLE 6 / 2020

Data process agreements in contracts

Since the introduction of the GDPR on 25 May 2018, the Personal Data Authority has been regularly checking whether organisations are respecting the requirements of privacy legislation. At Pon, huge strides have been made in reporting all kinds of data to our transporters in recent years. This makes shipments easier to track, deliveries more accurate and, for example, cumulative quantities of dangerous substances can be identified immediately. Given that we at Pon outsource almost all of our transport, considerable quantities of data are shared. That gives sufficient cause to hold this up to the light periodically.

Agreement

The most well-known arrangement is the processing agreement. This establishes for both parties what the processor is and is not allowed to do with the data. By virtue of the GDPR, this agreement is also a requirement when specific personal data is being shared. In order to determine whether the processing agreement is required, it is important to know whether a party is a processor or a controller. In many cases, this depends upon the purpose and the means of processing. Is the other party processing the data provided by Pon for its own, self-determined purposes? If so, then this party is a controller. Does Pon determine the purpose for which the processing is taking place? If so, then Pon is the controller.

Process agreements

In order to attach the right data processing agreements to the contracts, all contracts are now drawn up in three stages. For new agreements, the correct format for the framework agreement, including data processing, is used from the start. If expiring contracts are to be extended, a data processing clause is added as an addendum. For indefinite contracts, the process will be held up to the light. The data processing clause to be added will then be discussed during the next QBR or annual review.

If you have any further questions following this article, please contact Dennis Higler at dennis.higler@pon.com, or Pon Legal.