Data Processing Agreement (DPA) Based on the COMMISSION IMPLEMENTING DECISION (EU) 2021/915 of 4 June 2021

Between

(„Controller“)

whose

- correct legal name,

- correct address (street, town, postcode, country),

- correct trade register and trade register number

- as well as VAT No.

is completely and correctly included in the offer or order form

and

shopware AG Ebbinghoff 10 48624 Schöppingen

(„Processor“)

(together „Parties“)

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) of Regulation (EU) 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).

(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 and/or Article 29(3) and (4) of Regulation (EU) 2018/1725.

(c) These Clauses apply to the processing of personal data as specified in Annex II.

(d) Annexes I to IV are an integral part of the Clauses.

(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(f) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/172.

Clause 2

Invariability of the Clauses

(a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.

(b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3

Interpretation

(a) Where these Clauses use the terms defined in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively.

(c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Docking clause

(a) Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.

(b) Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.

(c) The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

SECTION II

OBLIGATIONS OF THE PARTIES

Clause 6

Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

Clause 7

Obligations of the Parties

7.1. Instructions

(a) The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.

(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or the applicable Union or Member State data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II.

7.4. Security of processing

(a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

(b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6. Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.

(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.

(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

(a) The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least threemonths in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.

(b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.

(d) The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.

(e) The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

(a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.

(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

Clause 8

Assistance to the controller

(a) The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

(b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions

(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:

1. the 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’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;

2. the obligation to consult the competent supervisory authority/ies 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 controller to mitigate the risk;

3. the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;

4. the obligations in Article 32 of Regulation (EU) 2016/679.

(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

Clause 9

Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 of Regulation (EU) 2016/679 or under Articles 34 and 35 of Regulation (EU) 2018/1725, where applicable, taking into account the nature of processing and the information available to the processor.

9.1. Data breach concerning data processed by the controller

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

(a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

(b) in obtaining the following information which, pursuant to Article 33(3) of Regulation (EU) 2016/679/, shall be stated in the controller’s notification, and must at least include:

1. 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;

2. the likely consequences of the personal data breach;

3. 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.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay;

(c) in complying, pursuant to Article 34 of Regulation (EU) 2016/679, with the obligation to communicate without undue delay 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.

9.2. Data breach concerning data processed by the processor

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the personal data breach can be obtained;

(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.;

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.

SECTION III

FINAL PROVISIONS

Clause 10

Non-compliance with the Clauses and termination

(a) Without prejudice to any provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

1. the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;

2. the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725;

3. the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/172.

(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.

(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

Annex I List of Parties

Annex II Description of the Processing

Annex III Technical und Organisational Measures

Annex IV List of sub-processors

Annex I

List of Parties

Controller(s): 

whose

- correct legal name,

- correct address (street, town, postcode, country),

- correct trade register and trade register number

- as well as VAT No.

is completely and correctly included in the offer or order form

Processor(s):

Name: shopware AG Address: Ebbinghoff 10, 48624 Schöppingen, Germany

Email: legal@shopware.com

Annex II

Description of the processing

Categories of data subjects whose personal data is processed

☒ Customers, employees, partners and interested parties

Categories of personal data processed

☒ Master data (addresses) ☒ Credit card data ☒ Telephone numbers

☒ Bank details incl. payment transactions ☒ Customer behavior data ☒ Contract data

☒ E-Mails ☒ Names ☒ Payment data

☒ Passwords ☒ UserID ☒ Access data

☒ IP Adresses ☒ Log files

Sensitive data processed (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures

Not applicable. The processor does not collect or process sensitive data.

Nature of the processing

1) On Premises

The subject matter of the Processing shall be maintenance, servicing, and support of the Customer's systems designated in the Main Agreement by the Processor via remote access to such systems.

2) SaaS and PaaS

In the case of SaaS or PaaS offers, the object of the processing is the provision of the services designated in the contract for SaaS and, if applicable, for software extensions by the processor for the controller, including the anonymization of usage-related personal data for further use by the contractor in accordance with the contract for SaaS and or PaaS services.

By way of clarification, it is noted that multiple contracts may also exist if the Client uses software extensions in addition to SaaS. In this case, all contracts are covered by the subject matter of the processing. In detail, the following processing operations are to be mentioned in particular:

• Cooperating with the Controller's staff in the provision and cancellation of the provision of the Processing Services.

• Informing the Controller of the relevant offers of the Processor, if the latter has opted for and agreed to such communication.

• To analyze certain Controller usage data and/or patterns in order to improve Controller data processing services.

• To perform contract processing services.

• To perform financial transactions related to processing services.

• To perform backups of customer data.

• To comply with legal obligations.

Purpose(s) for which the personal data is processed on behalf of the controller

1) On Premises

The processor shall not process data for the client; the operation of the systems shall be carried out by the controller itself.

In connection with the object of the processing, exclusively an unintentional knowledge of data by the processor during remote accesses to the systems cannot actually be ruled out. Accordingly, the exclusive purpose of the processing is the fulfillment of the Provider's obligations resulting from the main contract in connection with maintenance, care and support of the systems.

2) SaaS und PaaS

Exclusively for the fulfillment of the obligations of the Processor arising from the contract in connection with the provision and operation of SaaS and, if applicable, via software extensions as well as PaaS, personal data from the Client's domain shall be fully processed by the Processor within the meaning of Art. 4 No. 2 DSGVO, in particular collected, stored, modified, read out, queried, used, disclosed, matched, linked, anonymized or deleted.

Duration of the processing

The processing is continuous over the term of the contract.

Annex III

Technical and organisational measures including technical and organisational measures to ensure the security of the data

In addition to the processing contract, the parties also make the following stipulations regarding the technical and organisational measures to be implemented by the Provider:

1) Measures of pseudonymisation and encryption of personal data

Data shall be processed in such a way that it can no longer be attributed to a specific data subject without the need for additional information, provided that such additional information is kept separate and subject to appropriate technical and organisational measures.

The Provider only works on the Client's system by means of remote maintenance so there is no need of pseudonymisation or encryption of personal data.

2) Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services

☒ Access control to prevent unauthorised persons from having access to data processing systems by for instance password procedure, personal and individual login when logging in to the system, Door locks (electric door opener, combination lock, etc.) and Key management/documentation of distribution of keys.

☒ we prove an entry control to check who has processed the data for instance by access rights or system-side logging

☒ The data is protected against accidental destruction or loss and is always available to the Client for example by measures like a backup procedure or offsite storages

☒ The data is processed only in accordance with the instructions of the client due to a processing contract with rules on the rights and obligations of the parties

☒ We provide commitments to confidentiality of our employees and instruct them

☒ Conclusion of processing contracts for the external upkeep, maintenance and repair of data processing systems, provided that, in the case of remote maintenance, the processing of data is the subject of the service provided by the Contractor.

☒ To reach a high level of integrity we regularly do Evaluations and Approval routines

3) Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident

The following measures ensure that data is protected against accidental destruction or loss and is always available to the Client:

☒ Backup procedure

☒ Storage process for backups (e.g. fire-proof safe, separate fire compartment)

☒ Safeguarding of data storage in the secure network

☒ Customised installation of security updates

☒ Mirroring of hard disks

☒ Uninterruptible power supply (UPS)

☒ Suitable archiving facilities for paper documents

☒ Fire and/or extinguishing water protection of the server room

☒ Air-conditioned server room

☒ Virus protection

☒ Firewall

☒ Emergency plan

☒ Successful emergency exercises

☒ Redundant, isolated data storage (offsite storage)

4) Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing

☒ Evaluations/logging of data processing

☒ Approval routines

☒ Four-eyes principle

5) Measures for user identification and authorization

☒ Profiles/roles

☒ Access rights

☒ System-side logging

☒ Document Management System (DMS) / Enterprise Content Management System (ECMS) with change history

☒ Functional responsibilities, organisational responsibilities

☒ Four-eyes principle

6) Measures for the protection of data during transmission

It is ensured that data cannot be read, copied, changed, removed or otherwise processed without authorisation during transfer or storage on data carriers, and that it is possible to check which persons or bodies have received access to the data. The following measures have been implemented to ensure this:

☒ Encrypted WLAN

☒ Regulation for handling mobile data carriers (e.g. laptop, USB stick, mobile phone)

☒ Logging of copying, changing or removing data

☒ Use of encrypted VPN tunnels

7) Measures for the protection of data during storage

The data is protected during storage by the following measures:

☒ Personal and individual login when logging in to the system/network

☒ Authorisation process for access rights

☒ Single sign-on

☒ Password procedure

☒ Electronic documentation of passwords and protection of this documentation from unauthorised access

☒ Personalised chip cards, tokens, PIN/TAN, etc.

☒ Additional login for specific applications

☒ Automatic blocking of clients after timeout without user activity

☒ Firewall

☒ Management and documentation of differentiated authorisations

8) Measures for ensuring physical security of locations at which personal data are processed

The personal data is physically secured at the provider because of the following measures:

☒ Access control system, ID reader (magnetic stripe/chip card)

☒ Door locks (electric door opener, combination lock, etc.)

☒ Fence systems

☒ Key management/documentation of distribution of keys

☒ Alarm system

☒ Video surveillance

☒ Special protection measures for the server room

☒ Special protection measures for the storage of backups and other data carriers

☒ Visitor regulations (e.g. pick-up at reception, documentation of visiting hours, visitor passes, escort to exit after visit)

9) Measures for ensuring events logging

The provider logs various important processes with the following measures:

☒ Evaluations/logging of data processing

☒ Management and documentation of differentiated authorisations

☒ Document Management System (DMS) / Enterprise Content Management System (ECMS) with change history

☒ Keeping a record of processing activities (Art. 30 GDPR)

☒ Key management/documentation of distribution of keys

☒ System-side logging

☒ Electronic documentation of passwords and protection of this documentation from unauthorised access

10) Measures for ensuring system configuration, including default configuration

Privacy-enhancing default settings must be considered in both the standardised default settings of systems and apps, as well as in the setup of the processes. In this phase, functions and rights are specifically configured, the admissibility or inadmissibility of certain inputs or input options is determined regarding data minimisation, and the availability of usage functions is decided. The type and scope of the personal reference or anonymisation (e.g. for selection, export and evaluation functions, which are defined and pre-set or freely configurable) or the availability of certain processes, functions or records are also considered.

11) Measures for internal IT and IT security governance and management

The following measures ensure that data collected for different purposes is processed separately:

☒ Storage of data sets in physically separate databases

☒ Processing on at least logically separated systems

☒ Access rights according to functional authority

☒ Separate data processing with differentiating access rules

☒ Multi-client capability of IT systems

☒ Use of test data

☒ Separation of development and production environment

The following measures are designed to ensure that an organisation is in place that satisfies basic data protection requirements:

☒ Provider's data protection policy

☒ Provider's data protection guidelines

☒ Designation of a data protection officer

☒ Commitment of employees to confidentiality

☒ Sufficient training of employees in data protection

☒ Keeping a record of processing activities (Art. 30 GDPR)

12) Measures for certification/assurance of processes and products

The following measures ensure that data is processed only in accordance with the instructions of the client:

☒ Processing contract with rules on the rights and obligations of the parties

☒ Determination of contact persons and/or employees responsible

☒ Training/instruction of all authorised employees working for the Provider

☒ Commitment of employees to confidentiality

13) Measures for ensuring data minimization

☒ Irreversible deletion of data carriers

☒ no storage of unnecessary data in the first place

☒ deletion of doublets

☒ default input options are determined regarding data minimization

14) Measures for ensuring data quality

☒ Evaluations/logging of data processing

☒ Approval routines

☒ Four-eyes principle

15) Measures for ensuring limited data retention

The Provider does not carry out any data retention.

16) Measures for ensuring accountability

The following measures ensure that it is possible to check who has processed the data in data processing systems and when:

☒ Access rights

☒ System-side logging

☒ Document Management System (DMS) / Enterprise Content Management System (ECMS) with change history

☒ Functional responsibilities, organisational responsibilities

☒ Four-eyes principle

The following measures are intended to ensure that reporting processes are triggered in the event of data protection violations:

☒ Reporting process for data protection violations according to Art. 4 (12) GDPR vis-à-vis the supervisory authorities (Art. 33 GDPR)

☒ Reporting process for data protection violations according to Art. 4 (12) GDPR vis-à-vis the data subjects (Art. 34 GDPR)

17) Measures for allowing data portability and ensuring erasure

The provider allows data portability via its own secure software or other secure softwares. The provider also ensures erasure for example by an irreversible deletion of data carriers and on demand of the user.

Annex IV

List of sub-processors