Required Elements (GDPR Article 28) (+4)

Required Elements (GDPR Article 28)

• Subject matter and duration: Clearly defined scope and term of processing
• Nature and purpose: Specific description of what processing will occur and why
• Type of personal data: Categories of personal data being processed
• Categories of data subjects: Whose personal data is being processed
• Controller obligations and rights: Controller's instructions and oversight rights

Processor Obligations

• Process only on documented instructions: Processor commits to process only per controller's instructions (with exception for legal requirements)
• Confidentiality: Personnel authorized to process have committed to confidentiality
• Security measures: Appropriate technical and organizational measures described (Article 32 reference)
• Sub-processor requirements:
  • Written authorization requirement (general or specific)
  • If general authorization: notification of changes with opportunity to object
  • Sub-processors bound by same obligations via written agreement
  • Processor remains liable for sub-processor performance
• Data subject rights assistance: Processor will assist controller in responding to data subject requests
• Security and breach assistance: Processor will assist with security obligations, breach notification, DPIAs, and prior consultation
• Deletion or return: On termination, delete or return all personal data (at controller's choice) and delete existing copies unless legal retention required
• Audit rights: Controller has right to conduct audits and inspections (or accept third-party audit reports)
• Breach notification: Processor will notify controller of personal data breaches without undue delay (ideally within 24-48 hours; must enable controller to meet 72-hour regulatory deadline)

International Transfers

• Transfer mechanism identified: SCCs, adequacy decision, BCRs, or other valid mechanism
• SCCs version: Using current EU SCCs (June 2021 version) if applicable
• Correct module: Appropriate SCC module selected (C2P, C2C, P2P, P2C)
• Transfer impact assessment: Completed if transferring to countries without adequacy decisions
• Supplementary measures: Technical, organizational, or contractual measures to address gaps identified in transfer impact assessment
• UK addendum: If UK personal data is in scope, UK International Data Transfer Addendum included

Practical Considerations

• Liability: DPA liability provisions align with (or don't conflict with) the main services agreement
• Termination alignment: DPA term aligns with the services agreement
• Data locations: Processing locations specified and acceptable
• Security standards: Specific security standards or certifications required (SOC 2, ISO 27001, etc.)
• Insurance: Adequate insurance coverage for data processing activities

Common DPA Issues