Introduction
Organisations worldwide increasingly rely on third-party data processors. From cloud platforms to analytics tools, processors handle personal data every day. But many data controllers are making a costly mistake—they’re signing Data Processing Agreements (DPAs) written by the processor. Processor-Favoured DPA agreements often favour the processor, not the controller. That’s a problem.
Global privacy laws, including GDPR and India’s DPDP Act, are clear: processors must follow the controller’s instructions. Yet, when controllers accept processor-drafted DPAs, they give up control—often without realising it.
Processor-Drafted DPAs Are Designed to Protect One Party
Controllers carry the legal responsibility for data handling. They decide why and how personal data is used. Processors only act on those instructions.
So why are Data Controllers signing contracts that limit their rights?
Processor-favoured DPAs usually include clauses that:
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Restrict audit rights.
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Delay data breach notifications.
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Allow extended data retention.
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Minimise support with DSARs.
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Cap liability for serious failures.
Each clause puts the controller at a disadvantage. And worse, it increases the risk of non-compliance.
Audit Restrictions Undermine Oversight
Audit rights are non-negotiable under most privacy laws. Controllers must be able to verify how processors handle data.
Yet, many processor-drafted agreements block audits or make them conditional. Some only allow audits by third parties chosen by the processor. This strips away transparency.
Without clear audit rights, controllers can’t spot compliance failures until it’s too late.
Delayed Breach Notifications Increase Fines
When a breach happens, time matters. Controllers must often notify regulators within 72 hours.
But some DPAs give processors wiggle room with terms like “without undue delay.” That could mean hours—or even days—before the controller is informed.
Delays in breach notification can result in regulatory fines and damage to your brand.
Weak DSAR Clauses Create Compliance Headaches
Data Subject Access Requests (DSARs) are a cornerstone of modern privacy laws. Controllers are legally required to respond quickly.
However, processors often control the systems that hold the data. If the DPA doesn’t clearly require processor support, controllers are left exposed.
Some agreements even charge high fees for DSAR assistance—something never intended by the law.
Data Retention Should Be Your Decision
Under privacy laws, data must be deleted when no longer needed. This timeline should be set by the controller—not the processor.
Processor-written agreements often include broad or vague retention terms. This allows them to keep personal data longer than needed, increasing the risk of misuse or breach.
Capped Liability Shifts the Risk to You
When things go wrong, the controller is in the regulator’s crosshairs. But many DPAs written by processors limit liability in unfair ways.
These clauses may exclude certain claims or cap damages at low amounts. This leaves the controller to bear the financial and legal burden for processor mistakes.
Professionally Drafted DPAs Level the Playing Field
Controllers must push back. The solution is simple: use DPAs designed to reflect your legal role and responsibilities.
A controller-focused DPA ensures:
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Full audit rights.
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Immediate breach notification obligations.
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Clear DSAR cooperation terms.
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Defined data retention limits.
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Balanced and fair liability clauses.
With the right agreement, you gain control, reduce risk, and protect your organisation.
Formiti Helps Controllers Regain Control
At Formiti Data International, we draft and redline DPAs for data controllers worldwide. Whether you’re operating under GDPR, CCPA, DPDP Act, or any other framework, we tailor contracts to your needs.
Our experienced legal and privacy teams understand the nuances of controller–processor relationships. We align every clause with your regulatory obligations including our unbeatable RapidRedline Service for all data processing agreements.
With Formiti, you get:
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Controller-led DPA frameworks.
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Global coverage across six regions and 120+ countries.
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Clear, enforceable terms that protect your interests.
Don’t Let the Processor Write the Rules
Every controller has a choice. Accept a one-sided agreement, or take control of your data relationships. Processor-favoured DPAs are a legal and operational risk you can’t afford.
Make sure your contracts reflect your role, your risks, and your responsibilities.