The Order Processing Agreement (Auftragsverarbeitungsvertrag) is required under German law and the GDPR whenever an organization (the controller) engages another party (the processor) to process personal data on its behalf. This mandatory agreement ensures compliance with Article 28 GDPR and the German Federal Data Protection Act (BDSG), establishing clear responsibilities and obligations for both parties. The document must be in place before any data processing begins and should detail the nature, scope, and purpose of processing, security measures, confidentiality requirements, and procedures for data subject rights. It's particularly crucial in the German business environment, where data protection authorities strictly enforce compliance with data protection regulations.
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1. Parties: Identification of the Controller (Verantwortlicher) and Processor (Auftragsverarbeiter)
2. Background: Context of the processing relationship and purpose of the agreement
3. Definitions: Key terms used in the agreement, including those from GDPR Article 4 and any contract-specific terms
4. Subject Matter and Duration: Details of the processing activities and duration of the agreement
5. Nature and Purpose of Processing: Specific description of processing operations and their intended purposes
6. Type of Personal Data and Categories of Data Subjects: Specification of data types being processed and affected individuals
7. Obligations and Rights of the Controller: Controller's responsibilities, including instruction rights and monitoring
8. Obligations of the Processor: Processor's duties under Article 28 GDPR, including confidentiality and security measures
9. Technical and Organizational Measures: General description of security measures implemented by the processor
10. Sub-processing: Rules and procedures for engaging sub-processors
11. Data Subject Rights: Processor's support in fulfilling data subject requests
12. Security Breaches: Notification and handling of personal data breaches
13. Audit Rights: Controller's rights to verify compliance
14. Return or Deletion of Data: Procedures for data handling upon contract termination
15. Liability and Indemnification: Distribution of liability between parties
16. Termination: Conditions and procedures for ending the agreement
17. Governing Law and Jurisdiction: Specification of German law and competent courts
1. Cross-border Data Transfers: Required when personal data will be transferred outside the EEA
2. Industry-Specific Compliance: Added when processing involves regulated industries (e.g., healthcare, financial services)
3. Emergency Procedures: Needed for processing of critical data requiring specific incident response procedures
4. Insurance Requirements: Added when specific insurance coverage is required for the processing activities
5. Service Level Agreement: Include when specific performance metrics need to be maintained
6. Cost and Payment Terms: Required when the processing services are not covered by a separate commercial agreement
1. Schedule 1 - Processing Activities: Detailed description of all processing activities, including data types, purposes, and duration
2. Schedule 2 - Technical and Organizational Measures: Detailed description of security measures implemented by the processor
3. Schedule 3 - Approved Sub-processors: List of pre-approved sub-processors and their processing activities
4. Schedule 4 - Contact Details: Contact information for data protection officers and key personnel
5. Schedule 5 - Standard Operating Procedures: Detailed procedures for routine operations and incident response
6. Appendix A - Data Transfer Mechanisms: If applicable, documentation of transfer mechanisms for international data transfers
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